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

[2016] AATA 28

Kocwin and Secretary, Department of Social Services (Social services second review) [2016] AATA 28 (27 January 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1089
Re	Scott Kocwin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	27 January 2016
Place	Brisbane

The decision under review is affirmed.

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Senior Member McCabe

Catchwords

SOCIAL SECURITY – disability support pension – medical criteria – whether applicant should be allocated 20 points or more under impairment tables – applicant’s conditions do not satisfy medical criteria – 20 points not allocated under impairment tables – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94(1)

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6, 11(4)

REASONS FOR DECISION

Senior Member McCabe

27 January 2016

1. Scott Kocwin was granted the disability support pension (DSP) in January 1993. The Secretary of the Department of Social Services decided to cancel the DSP on 6 November 2014. The decision was made after the applicant’s long-standing health conditions were investigated and re-evaluated under the current impairment tables, which are included in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).[1] After reviewing the evidence, the Secretary decided the applicant did not have 20 points under the current impairment tables.[2] Mr Kocwin was unsuccessful before the Social Security Appeals Tribunal (as it then was) and he has asked this Tribunal to reconsider his entitlement.  

   [1] Mr Kocwin’s 1993 claim for DSP was decided with reference to different, more generous criteria. But the Secretary is permitted to reassess a claimant’s eligibility for the DSP from time to time. Section 27 of the Act says the Secretary (or the Tribunal on review) must refer to the criteria in force at the time of the reassessment.

   [2] The investigation was prompted by the applicant’s request to make the DSP portable so he could travel overseas. His request was refused but that decision is not under review here.

2. A person claiming the DSP must satisfy the so-called medical criteria set out in s 94(1)(a)-(c) of the Social Security Act 1991 (Cth) (the Act). Where the person was in receipt of DSP but the DSP was cancelled, I must be satisfied he or she met the criteria on the date of cancellation (ie, on 6 November 2014). I will deal with each of the criteria (insofar as they relate to a person whose DSP has been cancelled) below.

   Does the applicant have a physical, intellectual or psychiatric impairment?

3. The applicant experiences a number of health problems. He says he was initially paid the DSP because of an alcohol abuse condition. Alcoholism has physical and psychiatric dimensions. He also suffers from chronic obstructive pulmonary disease, Hepatitis C and cellulitis affecting the lower leg and foot. All of these conditions satisfy the first criteria.

   Do the applicant’s impairments attract 20 points or more under the impairment tables?

4. I must be satisfied the applicant is allocated at least 20 points under the impairment tables. The impairment tables are used as a reference point for the assessment of the functional impact of the applicant’s recognised health condition or conditions. An applicant may have experienced a condition for a long time, and it may be serious, but the focus is on the functional impact of the condition rather than how sick he may be. But there is a catch: before an impairment rating can be allocated, the decision-maker must be satisfied the conditions are fully diagnosed, fully treated and fully stabilised within the meaning of s 6 of the Determination. The Secretary questions whether some of the conditions in this case are fully diagnosed, fully treated or fully stabilised.

5. I will deal with Hepatitis C first. Hepatitis C is a chronic condition. It can have very serious effects, particularly in the longer term if it is untreated. Mr Kocwin has had the condition since 1993. It appears to have some functional impact that would fall to be assessed under table one, which measures the impact on physical exertion and stamina. But Mr Kocwin acknowledged in his oral evidence that he had not received treatment in respect of the condition for some time before the cancellation decision was made. He said he had been referred to a clinic recently and he expected to participate in a review of the condition in due course. In those circumstances, I cannot be satisfied the condition has been fully treated, even if it has been fully diagnosed. I am also unable to be satisfied the condition is fully stabilised if the applicant has not considered reasonable treatment options that may be available. It is impossible for me to assign any points in respect of this impairment.

6. Mr Kocwin has been an alcoholic for a long time. At the hearing, he described the destructive effect alcohol abuse has had on relationships and other aspects of his life. He referred in particular to a falling out with family members that occurred in 2006. He says the condition has left him socially isolated and has taken a significant physical toll. He also says a friend at the Salvation Army has to remind him of his various appointments and obligations. Without that prompting, he said, he would be lost. Curiously, the condition was not listed as a significant problem in the review form he was required to complete in 2014. Even so, I am satisfied the medical evidence before me suggests the condition is fully diagnosed and - given the applicant’s behaviour has become entrenched – fully treated and fully stabilised: see, for example, the report of the Health Professional Advisory Unit (exhibit one at p 200) which incorporates the opinion of Dr Alam, the applicant’s treating doctor.

7. How many points should be allocated in respect of that condition? The Secretary says no more than 5 points under table six, which deals with functioning related to alcohol, drugs and other substance use. The rationale for that opinion is summed up in the report by the Health Professional Advisory Unit (exhibit one at p 200). The report noted the applicant was recently able to travel to the Philippines. That suggests he enjoys a degree of independence and functioning that is not consistent with anything more than a mild functional impact. When asked about the trip, Mr Kocwin said it was a short trip and he was accompanied the whole way.

8. The Secretary suggested the applicant appeared to have controlled his drinking in recent times. In this connection, Mr Kocwin was asked about the answers he gave to the job capacity assessor at an interview (exhibit one at p 206).  Mr Kocwin is quoted as saying he had only consumed two drinks in the months before the interview. At the hearing, Mr Kocwin suggested he might have been referring to two bottles of spirits, or two drinking binges. It appears he certainly has engaged in binge drinking in 2014. Even so, it appears from the medical history discussed in the Health Professional Advisory Unit report that Mr Kocwin’s alcohol use has fluctuated over time.

9. The applicant says he is severely debilitated by his alcohol condition. I do not doubt it has had a disastrous impact when he was drinking heavily. I note he was hospitalised in April 2011 (exhibit one at pp 168-169) as a result of complications arising out of severe intoxication. His self-reports suggest his alcoholism has had a detrimental effect on social relationships (he says he has few friends although the impact on familial relationships occurred some time ago) and he experiences difficulties in reliably attending appointments without the assistance of a friend from the Salvation Army. There is also some evidence that the drinking is causing damage to his vital organs, most obviously his liver which is affected by Hepatitis C: exhibit one at p 174. But I am not entitled to make an assessment of his condition in a vacuum. I must refer to the descriptors in table six, and I must have particular regard to the objective evidence. The introduction to the table makes it clear that self-reporting is insufficient, most obviously because it tends to be (and was in this case) self-serving. As it happens there is limited objective evidence (as opposed to self-reporting) to show he satisfies enough of the descriptors to justify the allocation of 10 points. It is unclear whether he was regularly misusing alcohol when the cancellation decision was made and there is no clear evidence he had difficulty completing daily tasks or that he was often absent from activities because he was affected by alcohol. In the circumstances, I am satisfied the applicant should be awarded 5 points under table six.

10. The applicant’s chronic obstructive pulmonary disease should be assessed under table one, which deals with the impact on activities requiring physical exertion and stamina. The applicant’s general practitioner, Dr Alam, noted the applicant experienced shortness of breath with exertion: exhibit one at p 121. I note Mr Kocwin has been admitted to hospital experiencing shortness of breath in 2011 and 2012 – although the clinical notes mention the applicant had run out of Ventolin and recovered once Ventolin was administered: exhibit one at p 165. Mr Kocwin says he is unable to walk far and he cannot undertake many household activities, although the self-report of that level of impairment sits uncomfortably with his ability to travel to the Philippines. Dr Alam is reported as saying the condition has a minimal impact albeit that he expects the condition to worsen if Mr Kocwin does not give up smoking: exhibit one at p 199.

11. The objective evidence suggests the applicant should not be allocated more than 5 points under table one at the relevant time.

12. That leaves the applicant’s cellulitis condition. The condition manifests itself through painful blisters on the feet. Mr Kocwin says he is unable to wear closed shoes and when the blisters flare up he may require antibiotics. I note he visited the emergency department at the Royal Darwin Hospital on 9 February 2014 with a blister on his hand and his foot; the blisters were lanced and cleaned but the applicant was merely advised to keep them clean: exhibit one at p 171. He came back to the emergency room on 24 April 2014 after his return from the Philippines. Blisters on his foot had become infected, and he required antibiotics and was hospitalised for several days: exhibit one at p 173. The report from the Health Professional Advisory Unit records the applicant saying he experienced flare ups of the condition about twice each year (exhibit one at p 201; see also p 205).

13. There was a dispute over which table was applicable. The applicant says I should have regard to table 14, which deals with functions of the skin. The applicant says he experiences moderate difficulties performing daily activities due to lesions on the skin which require creams or dressings and which limit movement and comfort. But that is not the usual impact of his condition: he gets into that state around twice a year. I am satisfied the evidence suggests the applicant usually experiences a mild functional impact which refers to experiencing minor difficulties using his feet (and occasionally his hands) due to his skin condition.

14. The Secretary said I should use table three to assess the impact of the cellulitis. Table three relates to lower limb function. On the face of it, that submission is unattractive. Mr Kocwin has cellulitis, which is a skin condition, albeit that it impacts on his feet (and occasionally his hands). But I note table 14 refers to the impact of a “permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.” The word permanent is important: there is no evidence that Mr Kocwin’s cellulitis is a permanent condition, albeit that it has been recurring. The recurrence may be explained by environmental or behavioural factors. It is not like solar damage to skin cells which produce an ongoing risk of cancer.

15. I accept table three is the only table which is applicable in the circumstances. In making my assessment, s 11(4) of the Determination says I must take account of the episodic nature of the condition. That provisions says a rating must be assigned that “reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes…”.

16. The applicant says he experiences acute symptoms twice a year in the ordinary course, although he routinely avoids wearing closed footwear. (He lives in Darwin, after all, so that is not necessarily a hardship.) He was hospitalised in 2014 after he developed a particularly serious infection but the onset of that condition may have been explained by his exposure to bacteria in the Philippines. The most that can be said is that he occasionally experiences discomfort while walking if there is a flare up – but not otherwise. I am not satisfied the “overall functional impact” of the impairment (as opposed to the impact during the occasional acute episode) conforms to any of the descriptors in table three. I am unable to assign an impairment rating in those circumstances.

    Conclusion

17. Mr Kocwin is obviously unwell. His condition is deteriorating, at least partly because of his long history of heavy smoking and substance abuse. His self-reporting suggests he is seriously impaired in a number of respects. The objective evidence is less clear-cut. In all the circumstances, I am not satisfied the applicant should be allocated at least 20 points under the impairment tables. It follows he is unable to satisfy the criterion in s 94(1)(b), and the decision under review must be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 27 January 2016

Date of hearing	13 November 2015
Solicitor for the Applicant	Ms S Eder, Darwin Community Legal Service
Advocate for the Respondent	Mr R McQuinlan, Department of Human Services