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

[2018] AATA 1268

JZPC and Secretary, Department of Social Services (Social services second review) [2018] AATA 1268 (11 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1660

Re:JZPC

APPLICANT

And  Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Richard West, Member

Date:11 May 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..........................[sgd]..............................................

Richard West, Member

SOCIAL SECURITY – refusal of disability pension – whether conditions rate 20 points or more under Impairment Tables – diabetes – myopia – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975

Cases

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

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Covenden v Secretary, Department of Social Services [2018] AATA 353

Secondary Materials

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

REASONS FOR DECISION

Richard West, Member

11 May 2018

BACKGROUND

1. This matter concerns the refusal of the Disability Support Pension (DSP) to JZPC and is a Second Tier Review of that decision.

2. In the proceedings JZPC was self-represented.  The Secretary was represented by Ms Vincci Chan, a solicitor with the Department of Human Services. The proceedings were conducted with the assistance of an interpreter in the Mandarin language.

3. The relevant history of the matter is as follows:

   ·JZPC made his original application for DSP on 27 April 2016;

   ·Centrelink assessed and refused the application on 24 June 2016. Centrelink is the service provider for the Department of Social Services.  A Departmental Authorised Review Officer  affirmed this decision on 15 October 2016 (the Initial Decision);

   ·JZPC requested a review of the Initial Decision by the Tribunal (Social Services & Child Support Division) (the First Tier Review) on 6 November 2016;

   ·The First Tier Review affirmed the Initial Decision on 28 February 2017;

   ·JZPC applied for a Second Tier Review of the Initial Decision on 21 March 2017;

   ·By order of the Tribunal on 19 October 2017 the publication of the applicant’s name was restricted to the pseudonym JZPC;

   ·I conducted the Second Tier Review  on 15 March 2018.

   LEGISLATION

4. I have had regard  to the following relevant legislation in making this decision:

   ·Social Security Act 1991 (SS Act);

   ·Social Security (Administration) Act 1999 (SSA Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination): a determination made by the Minister under s.26(1) of the SS Act which came into effect on 1 January 2012.

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFYING PERIOD

5. A decision in relation to the granting of  DSP must be made having regard to the applicant’s condition in the period commencing on the day the application is lodged and for a period of 13 weeks thereafter.  This is called the qualifying period[1].

   [1] See ss. 37, 42 and clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999

6. In this case the qualifying period commenced on 27 April 2016 and ended on 27 July 2016.

7. In assessing whether a condition has stabilised and is likely to persist for the future the Tribunal must look at the situation during the qualifying period, having regard to the evidence available at the time.  Evidence of deterioration in the claimant’s condition subsequent to the qualifying period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition during the qualifying period. [2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigeonous Affairs [2012] AATA 992 at [34}; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33] and Re Covenden v Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

8. To qualify for a DSP an applicant must satisfy the requirements set out in s.94(1) of the SS Act as assessed during the qualifying period.

9. In essence s.94(1) requires that:

   ·the applicant have a physical, intellectual or psychiatric impairment;

   ·the applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years, and together rate at least 20 points on the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   ·the applicant have a continuing inability to work; or

   ·the Secretary be satisfied that the applicant is participating in the supported wage system.

   JZPC’S IMPAIRMENTS

10. The Tribunal in the First Tier Review reviewed the medical evidence and identified that JZPC claimed to be suffering from the following conditions:

    ·insulin-dependent diabetes mellitus;

    ·recurring pain in the right  middle finger;

    ·arthritis of the lower limbs;

    ·high myopia , nuclear sclerosis and myopic retinal degeneration; and

    ·mild right carpal tunnel syndrome.

11. At the outset of the hearing the applicant confirmed that for the purpose of the Second Tier Review, his application for a DSP relied on the conditions of insulin-dependent diabetes and myopia. He did not press his claim in relation to the other conditions.

    Insulin-Dependent Diabetes Mellitus

12. There was evidence before the Tribunal and it was conceded by the Secretary, that during the qualifying period, JZPC was suffering from insulin-dependent diabetes mellitus; and that this condition was fully diagnosed, fully treated and fully stabilised.  The Secretary asserted that this impairment attracted a rating of 5 points on the Impairment Tables.

13. JZPC asserted that a rating of 5 points was too low and that the condition should be rated at least 15 points.

    Myopia

14. There was evidence before the Tribunal and it was conceded by the Secretary, that during the qualifying period, JZPC was suffering from myopia; and that this condition was fully diagnosed, fully treated and fully stabilised.  The Secretary asserted that this impairment attracted a rating of 5 points on the Impairment Tables.

15. JZPC asserted that a rating of 5 points was too low and that the condition should be rated at least 10 points.

    JZPC’S EVIDENCE

16. Prior to the hearing, JZPC provided a number of documents to the Tribunal.  These documents were tendered as exhibits at the hearing.  They comprised:

    ·a bundle of four academic papers on aspects of hypoglycaemia and diabetes – Exhibit A1;

    ·a copy of a medical report of Dr Le dated 14 September 2017 – Exhibit A2;

    ·a copy of a letter to Dr Le from Dr Roydhouse reporting on JZPC’s visual condition, dated 2 May 2017 – Exhibit A3; and

    ·a written statement of JZPC, undated – Exhibit A4.

17. JZPC gave evidence at the hearing with the assistance of an interpreter in the Mandarin  language.

18. In his evidence in chief JZPC adopted his written statement. 

19. In his statement JZPC stated that he is 64 years old and has had diabetes for 22 years.  He stated that 14 years ago he started a regime of multiple doses of insulin daily and that continues to the present day.  He said that 7 years ago he fell into a hypoglycaemic coma and was rescued by a paramedic team and taken to the Royal Melbourne Hospital where he recovered.  Since that incident he has managed and treated his diabetes with the assistance of the diabetes clinic and specialists at the Royal Melbourne Hospital. 

20. JZPC said that he has faced blood glucose fluctuations over a long period which has grown to a more serious condition ‘without pause’. He stated that the frequency and symptoms of hypoglycaemia are getting worse each year since he turned 60.  He said that the condition has a serious impact on his ability to work and would endanger his life in severe circumstances.  He said that in his daily life he has to rely on injections four times a day and has to carefully monitor his glucose levels to avoid hypoglycaemia.  He stated that it is difficult to control his glucose levels and that any ‘slightly excessive activity’ can lead to hypoglycaemia, for example simply taking a shower for less than 10 minutes could bring on hypoglycaemia. He stated that his condition is exactly in conflict with all the physical demands of any possible workplace.

21. In his oral evidence, JZPC  stated that he does not have a stable blood sugar reading and if hypoglycaemia occurs, it can be life threatening and if it occurs too often it can bring on dementia.  He said that he experiences low blood sugar often, that it is unpredictable and is related to body movement. If it occurs he has to sit down and cannot work.

22. JZPC said his eye condition is related to his diabetes and he finds it hard to read as his vision is very blurred.  He said he uses eye drops five or so times per day for dry eyes.  He admitted that he could use a computer screen with larger size type.

23. JZPC said he can walk without assistance and can walk up stairs.  He said he can walk for up to an hour but it is risky because even a short period of exercise such as taking a shower can trigger hypoglycaemia.  He says that his wife does all of the housework.  He doesn’t drive but is capable of using public transport but has to measure his blood sugar level before doing so.

24. Ms Chan declined to cross-examine JZPC.

    SUBMISSIONS

25. Before making his submission, JZPC was invited to address the Tribunal about the application of the factors in the Impairment Tables to his conditions.  He was provided with a copy of the Determination and the appropriate Tables were identified for him.  He was offered an adjournment to consider the Impairment Tables before making his submissions.  JZPC declined the offer of an adjournment and did not address the specific aspects of the Impairment Tables in his submission.  He simply asserted that a rating of 5 as proposed by the Secretary for his diabetes was too low and it should be at least 15.  He said that a rating of 5 for his myopia was also too low and it should be a rating of 10.

26. Ms Chan referred the Tribunal to the Secretary’s Statement of Facts, Issues and Contentions filed prior to the hearing and relied on that Statement as setting out its position.  The Secretary’s principal response to the evidence of JZPC was to assert the absence of corroborating medical evidence and to rely on paragraph 8(1) in the Determination that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

27. The Secretary submitted that little weight should be given to Exhibits A1-A4.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

28. In conducting the Second Tier Review I have had regard to the documents produced to the Tribunal by the Secretary pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) and to the evidence of JZPC.

29. I have not had regard to Exhibits A2 and A3 tendered by JZPC.  They are both medical reports commenting on JZPC’s condition in September and May of 2017. This is well after the qualifying period and they do not bear on any question as to the quality of other medical reports that have been provided.[3]

    [3] Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]

30. I have marked the articles provided by JZPC as Exhibit A1 but have not placed any reliance on them.  They do not bear on the questions before me.

    Insulin-Dependent Diabetes Mellitus

31. The Secretary accepts that the applicant’s insulin-dependent diabetes mellitus was fully diagnosed, fully treated and fully stabilised during the qualifying period.  This was not disputed by JZPC.

32. The Secretary’s submission refers to the evidence of Dr Le (T14), Dr Kumar (T21) and Dr Nankervis (T25).

33. Dr Le reported on 10 May 2016 that JZPC was suffering from insulin-dependent diabetes mellitus, that his condition had started in 1996 and that since January 2004 he had been treated with insulin.  He also reported that JZPC was under management and advice from Dr Nankervis (T14 and T16).  Dr Kumar reported on 8 July 2016 that JZPC has Type 1 Diabetes which results in a risk of hypoglycaemia and in his opinion the diabetes was then adequately controlled (T21).

34. Dr Nankervis’s report of 26 October 2016 (T25), relied on by the Secretary, is dated well after the qualifying period.  His report broadly confirms the diagnosis of both Dr Le and Dr Kumar and I accept the relevance of the report to that extent but otherwise I do not give it any weight.

35. I am satisfied on the basis of this evidence that JZPC’s diabetes condition was fully diagnosed, treated and stabilised during the qualifying period and that it was likely to persist for more than two years.

36. The Secretary relies on the Job Capacity Assessment Report completed on 16 June 2016 (T17) to assess the extent of JZPC’s impairment due to this condition.  In relation to JZPC’s diabetes, the report noted that the medical evidence indicated a mild functional impact on activities requiring physical exertion or stamina.  It reported that JZPC:

    ·experiences occasional symptoms (eg. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities;

    ·was able to walk to local facilities without stopping but due to fluctuations in his condition he sometimes needs to stop half way when doing his weekly shopping; and

    ·was able to perform most work-related tasks except heavy manual labour.

37. The Secretary also noted that Dr Le had reported that he was unaware that JZPC experienced hypoglycaemia and offered the opinion that the condition was not too serious and there were no specific symptoms.  JZPC disputed this aspect of the report in his oral evidence, questioning why the Job Capacity Assessor (JCA) had spoken to Dr Le, his general practitioner, rather than to his treating specialist.  I accept that the criticism of the JCA is warranted in this respect. Further, it seems clear from the medical reports that JZPC’s susceptibility to hypoglycaemia was well recognised[4]. This suggests that Dr Le was careless in saying that he was unaware of the hypoglycaemia.  I give no weight to these particular comments attributed to Dr Le in T17 for these reasons.

    [4] See for example T4 and T21

38. JZPC’s evidence painted a more serious picture of his physical limitations than is recorded in the JCA’s report.  However, JZPC was not specific in his evidence as to the period to which his evidence related.  He did say that his condition was deteriorating over time and especially in the last 4 years, since he turned 60.   It is therefore difficult to assess reliably whether his evidence properly relates to the qualifying period or whether he was describing his deteriorated condition subsequently.  In addition, as the Secretary correctly points out, JZPC’s evidence of more serious symptoms is not corroborated by medical evidence.  For these reasons, I prefer the JCA’s assessment of the limitations attributable to the diabetes condition adopted by the Secretary when assessing the rating under the Impairment Tables.

39. I am satisfied that the correct Impairment Table to be used is Table 1, which applies to permanent conditions resulting in functional impairment when performing activities requiring physical exertion and stamina.

40. The Secretary submits that a rating of 5 is appropriate for the diabetes condition.  JZPC submits that a rating of 15 should be given.  The Determination makes it clear that where a rating falls between two ratings the lower rating is to be assigned (paragraph 11(1)(c) of the Determination).  Thus, JZPC’s submission must be rejected.  I accept the Secretary’s assessment that a rating of 20 is not justified for the diabetes condition on the evidence available.  It is also clear that a rating of 0 is inappropriate.

41. The question is whether the level of impairment can be properly assessed at 5 or 10 points.

42. To attract a rating of 10 the person must,  amongst other things, experience 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 is unable to walk far outside the home.  The JCA’s assessment based on relevant medical evidence does not support this assessment. In fact, the evidence of JZPC was that he could walk for up to an hour, albeit with some concerns regarding his risk of hypoglycaemia. Paragraph 11(1)(c) of the Determination provides that a higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.  Accordingly, I am satisfied that a rating of 10 points is not appropriate for the diabetes condition. 

43. I find that a rating of 5 points is appropriate.

    Myopia

44. The Secretary accepts that the applicant’s myopia was fully diagnosed, fully treated and fully stabilised during the qualifying period.  This was not disputed by JZPC.

45. The medical report from Dr Roydhouse (T20) dated 28 June 2016 states that JZPC was suffering from visual acuities corrected to 6/12 in the right eye and 6/9 in the left eye with his high myopic correction.  He has some nuclear sclerosis in each eye and some myopic retinal degeneration.  There is no retinopathy.  Dr Kumar also noted in his report of 8 July 2016 (T21) that JZPC has nuclear sclerosis and myopic retinal degeneration. The Secretary’s submission relies on the Job Capacity Assessment report of 15 September 2016 (T22), which assessed JZPC’s condition as fully diagnosed, treated and stabilised with limited scope to improve functioning within the next 2 years.  The JCA found that JZPC experienced a mild functional impact on activities involving visual function, in that:

    ·he could perform most day to day activities involving vision;

    ·he had mild difficulty seeing things at a distance or close up when wearing glasses or contact lenses and had difficulty seeing the fine print in newspapers or magazines or seeing street signs or bus numbers including at night but could travel around the community and use public transport without assistance.

46. JZPC gave limited evidence regarding his myopia condition.  It is not addressed in his written statement – Exhibit A4.  In his oral evidence he said his eye condition is related to his diabetes and he finds it hard to read as his vision is very blurred.  He said he uses eye drops about five times per day for dry eyes.  He admitted that he could use a computer screen with larger size type.  He confirmed that he can use public transport.

47. I am satisfied that the correct Impairment Table to be used is Table 12, which applies where a person has a permanent condition resulting in functional impairment when performing activities involving visual function.

48. Applying the JCA assessment in T22 to the factors in Table 12, I am satisfied that the rating of 5 points for myopia is appropriate.

    Other Conditions

49. JZPC did not contest the Secretary’s contention that the remaining conditions: recurring pain in the right middle finger, arthritis of the lower limbs and mild right carpal tunnel syndrome were not fully diagnosed, fully treated and fully stabilised during the qualifying period.

50. The most recent medical evidence in relation to the recurring pain in the right middle finger was in 2012 (T5) and there is no medical evidence relevant to the qualifying period.   Dr Le reported that JZPC’s arthritis in his knees caused very occasional moderate pain and he had not been referred to a specialist (T19). As to the carpal tunnel syndrome, the evidence is that the applicant had been referred to a hand clinic in September 2012 but did not proceed with surgery (T5).

1. The Job Capacity Assessment dated 23 June 2016 (T17) confirms that there was no functional impact on JZPC from any of these conditions.

2. On the basis of this evidence, I am not satisfied that the remaining conditions: recurring pain in the right middle finger, arthritis of the lower limbs and mild right carpal tunnel syndrome - were fully diagnosed, fully treated and fully stabilised during the qualifying period.

   DECISION

3. On the basis that the evidence before the Tribunal clearly establishes that JZPC’s conditions do not meet the 20 point requirement on the Impairment Tables, I do not need to consider other requirements of the Determination.  I affirm the First Tier Review decision.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

.............................[sgd]...........................................

Associate

Dated: 11 May 2018

Date(s) of hearing:	15 March 2018
Applicant:	In person
Solicitors for the Respondent:	Vincci Chan