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

[2018] AATA 938

KPZL and Secretary, Department of Social Services (Social services second review) [2018] AATA 938 (17 April 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6427

Re:KPZL  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:17 April 2018

Place:Canberra

The decision under review is affirmed.

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Deputy President J Sosso

Catchwords

SOCIAL SECURITY – disability support pension – whether conditions are fully diagnosed, treated and stabilised – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

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

Re Kannina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663

Re K B and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273

Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58

Secondary Materials

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

REASONS FOR DECISION

Deputy President J Sosso

17 April 2018

INTRODUCTION

1. KPZL (the Applicant) seeks a review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) dated 7 October 2016 which affirmed the decision of an Authorised Review Officer (ARO) of the Department of Human Services (the Department) dated 15 July 2016 to reject the Applicant’s claim for the Disability Support Pension (DSP).

2. On 8 February 2016 the Applicant lodged a claim for the DSP – T14 pp. 101 - 130.

3. On 9 April 2016, the Department rejected the Applicant’s claim – T16 pp.136 - 137. An ARO affirmed this decision on 15 July 2016 – T 20 pp. 143 - 146. The following Findings of Fact were made by the ARO:

   ·Your conditions of chronic fatigue syndrome and aortic stenosis with aortic valve replacement are not accepted as being permanent for Disability Support Pension purposes as they have not been fully treated and stabilised.

   ·No impairment rating can be assigned for your conditions.

   ·You do not have an impairment rating of 20 points or more.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.

4. On 12 August 2016 the Applicant applied to the AAT1 for review of the ARO’s decision – T21 p.151.

5. The AAT1 was constituted by Member Mark Hyman – T2 p.3. Member Hyman considered the Applicant’s chronic fatigue syndrome and his aortic valve replacement and concluded that “None of [the Applicant’s] conditions meet the tests for permanence set out in the Impairment Tables” and that, therefore, the Applicant did not qualify for the DSP  – T2 p. 6.

6. On 28 November 2016, the Applicant applied to this Tribunal for review of the decision of the AAT1.

7. The matter was heard in Canberra on 29 March 2018. The Applicant participated by telephone and was self-represented. The Secretary, Department of Social Services (the Respondent) was represented by Mr Jonathon Tsianikas from the Department.

8. During the course of the hearing the Applicant sought an order under s 35(3) of the Administrative Appeals Tribunal Act 1975 that directions be issued prohibiting the disclosure of information that would reveal his identity.

9. The gravamen of his application was that the lived in a small and isolated locality and the publication of information about his DSP application would cause embarrassment to both himself and his family and may have a detrimental impact on his health.

10. The application was opposed by Mr Tsiankas who quite properly highlighted that a foundation principle for the procedure of this Tribunal is that its proceedings should be held in public, evidence given be made available to the public and that there needed to be sound reasons for departing from this general approach by prohibiting disclosure of an applicant’s name.

11. After giving careful consideration to the submissions received, I determined to make the necessary direction that the Applicant’s name not be disclosed.

12. In making this decision I was mindful that a suppression order should only be granted if it is in the public interest to do so. Considerations purely focused on the convenience or subjective needs of an applicant must give way to the greater public interest in open justice. However, there is considerable authority that where publication of an applicant’s identity can result in prejudice to members of his family, particular a child, then such an order can be justified – Re K B and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273. Further, such an order can  be justified if publication may have a detrimental effect on an applicant’s job prospects or health – Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58 and Re Kannina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663. In short, a suppression order can be made if (at a minimum) it is clear that the public interest in open justice would come at the price of harm (physical, mental or monetary) to both an applicant and members of his or her family or associates.

13. In this matter I determined in favour of the Applicant because he is a sick man, with few assets, living on the margin of society, and there are matters on file which would cause him and his family embarrassment and may cause him personal distress with possible negative health repercussions.

14. One threshold issue was that the Applicant had not recorded any “disabilities, illnesses or injuries” on his original claim form – T14 p.126.

15. However, it is clear, for example, from Dr Kate Rampe’s (General Practitioner) medical report dated 5 October 2017 (SFIC Attachment A p.4) that the Applicant had reported that he had been diagnosed with the following conditions at various stages in his life:

    -    “Chronic Fatigue Syndrome (CFS) – diagnosed 1992

    -    Fibromyalgia – diagnosed 8/2/17 by Rheumatologist Dr Tsai on review of [the Applicant’s] ongoing symptoms associated with CFS

    -    Diverticulitis – diagnosed 2010

    -    Asthma – diagnosed 1962 as a child

    -    Asthma/Chronic Obstructive Pulmonary Disease Overlap Syndrome (ACOS) – diagnosed 27/6/17

    -    Severe aortic stenosis – diagnosed 11/11/15 as a result of attending hospital with symptoms of an Acute Coronary Syndrome (ACS i.e. heart attack)

    -    Right knee complex meniscal tear – diagnosed 18/9/17 on MRI done for investigation of worsening knee pain”

16. In a Medical Certificate dated 20 September 2017, Dr Rampe indicated that the Applicant suffered from “Complex meniscal tear of knee” – Secretary’s Statement of Facts, Issues and Contentions (SFIC) Attachment A p.3.

17. In the course of the hearing, meanwhile, the parties did not dispute that the Applicant’s conditions relevant to these proceedings should be limited to his chronic fatigue syndrome, cardiac condition and knee condition.

18. Furthermore, having regard to the state of the evidence, the Applicant determined that it was unnecessary for him to give oral testimony on the state of his functionality.

    ISSUES

19. The SFIC dated 6 November 2017 (paras 3 and 4) sets out the issues to be determined in this matter. As they correctly outline the task presently required of the Tribunal, I set them out here:

    “The issue for determination in this matter is whether the Applicant was qualified to receive DSP on the day of his claim, 8 February 2016, or within 13 weeks of that day, ending 9 May 2016 (the qualification period).

    This requires consideration of whether, during the qualification period, the Applicant had:

    (a)a physical, intellectual, or psychiatric impairment;

    (b)an impairment rating of at least 20 points when assessed under the Impairment Tables; and

    (c)a continuing inability to work.”

    LEGISLATION

20. To qualify for a DSP a person must satisfy the criteria contained in s 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:

    (a)the person has a physical, intellectual or psychiatric impairment;

    (b)the person’s impairments is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work.

    The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), made pursuant to s 26 of the Act and came into force on 1 January 2012.

21. Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Cl 5(2) and Cl (3). Importantly, Cl 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations – Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).

22. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).

23. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).

24. To be a permanent condition it must be:

    (a)fully diagnosed by a medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    more likely than not, to persist for more than two years – Cl 6 (4).

25. In determining whether a condition has been fully diagnosed and fully treated, the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned for the next two years – Cl 6(5).

26. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).

27. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.

28. This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:

    “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 of 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 illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred 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.”

    CONSIDERATION         

    Chronic fatigue syndrome

29. The Respondent does not dispute that the Applicant’s “chronic fatigue syndrome” was fully diagnosed during the qualification period but contends that this condition was not fully treated and fully stabilised – SFIC para 38. Given the state of the medical evidence, the Tribunal agrees with the Respondent’s conclusion.

30. Dr Mark Donohoe, in his medical report dated 25 January 2002, diagnosed the Applicant as having “chronic fatigue syndrome” – T5 p.73. He recommended a “trial of 6 weeks of higher does Doryx” and indicated that a “plan” would need to be made for the purposes of “future management.” Furthermore, he noted (T5 p.74) that the Applicant:

    “Has chronic fatigue syndrome – 8 years following EB viral infection, associated with liver infection which has persisted ever since…

    Note that he has needed chronic doxycycline antibiotic to maintain any level of health…”

31. Although Dr Donohoe diagnosed the Applicant and recommended a treatment plan in 2002, there is no evidence before the Tribunal that the Applicant was being treated for his chronic fatigue syndrome during the qualification period.

32. Indeed, Dr Catherine Marks, General Practitioner, in her medical report dated 30 June 2016, stated that the Applicant “reports that he did not follow up with Dr Donohoe as it was too difficult for him to travel to Sydney”.

33. She observed that he “is still reporting symptoms of Chronic Fatigue Syndrome with disabling fatigue and pain” and added that “It is likely that this condition will persist in the indefinite future” – T19 p.142. Dr Marks did not indicate what treatment may be appropriate for the Applicant to receive in respect of his chronic fatigue syndrome.

34. Dr Ted Tsai in his medical report of 30 March 2017 stated that the Applicant “has disabling chronic fatigue syndrome and fibromyalgia for twenty years after a significant viral illness.” He added that the Applicant’s “condition is unlikely to significantly improve in the next 12 months” – T22 p.153. Furthermore, he noted:

    “I would support his Disability Pension while he undergoes a physical reconditioning programme over the next 12-18 months… He may require a permanent pension should he not improve despite participating in a rehabilitation programme over the next 12 months.”

35. Dr Tsai’s recommendation was made some ten months after the conclusion of the qualification period. There is no evidence before the Tribunal that the Applicant participated in any treatment plan within the qualification period.

36. In her medical report dated 5 October 2017, Dr Rampe indicated that the Applicant had been her patient since 14 August 2018 – SFIC Attachment A p.4. She opined that his “CFS has been present for many years and as of 8/2/16 was expected to persist for more than 2 years. His Fibromyalgia, though only diagnosed recently, in retrospect has also been present for many years alongside his CFS” – SFIC Attachment A p.4.

37. Dr Rampe opined – SFIC Attachment A p.4:

    “The treatment [the Applicant] has received prior to 8/2/16 has been aimed at treating both his CFS directly and at treating the other chronic conditions (i.e. Asthma, ACOS, aortic stenosis) that contribute to his symptoms. His treatment has included:

    -    Occupational physician review (approx.. 2006)

    -    Prolonged course of doxycycline antibiotic (May 1999 – May 2001)

    -    Multiple courses of anti-inflammatories over many years

    -    Antidepressant: Fluoxetine (2.5 yrs from 2000 – 2002)

    -    Regular preventer inhaler & reliever inhaler as needed (Symbicort and ventolin 2007 – 2017)

    -    Aortic valve replacement (bioprosthesis) (24/11/2015)”

38. The only treatment being undertaken during the qualification period was: “Regular preventer inhaler…” However, there is little indication that this treatment was part of an ongoing treatment plan, nor is there sufficient evidence presently before the Tribunal about the effect this treatment may have had on the Applicant’s chronic fatigue syndrome and whether it could be said that this treatment fully treated that condition.

39. Dr Rampe also noted: “This year [the Applicant] has seen a Rheumatologist for review of his CFS (on 8/2/17); as a result of this appointment he was diagnosed with fibromyalgia & was started on medication (Amitriptyline) to try and reduce the severity of his symptoms.” She added that: “He has also started circadin as a sleep aid and pregabalin for pain.” These treatments, however, were administered after the conclusion of the qualification period.

40. Given the state of the medical evidence, the Tribunal concludes that the Applicant’s chronic fatigue syndrome was not fully treated, nor fully stabilised, in the qualification period. In these circumstances the Tribunal is unable to assign any impairment points.

    Cardiac condition

41. The Respondent concedes that the Applicant’s “cardiac condition” was fully diagnosed during the qualification period but contends that this condition was not fully treated and stabilised – SFIC para 45. Again, given the state of the medical evidence, the Tribunal agrees that contention is soundly based.

42. The Applicant attended the Canberra Hospital on 11 November 2015, presenting with “acute coronary syndrome and syncopal episode” – T8 p.77. On 23 November 2015 he underwent surgery to treat his “Aortic Stenosis” – T9 p.82.

43. Dr Geoff Long opined on 18 December 2015 that the Applicant was “Likely to show considerable improvement within 2 years” in respect of his “Aortic valve replacement” – T11 p.89.

44. A discharge referral dated 12 January 2016 requested that the “GP please follow up on his recovery and ensure he undertakes ongoing rehabilitation [f]or the AVR” – T12 p.91.

45. On 18 May 2016, Dr Kris Nowakowski, Cardiology Staff Specialist of the Canberra Hospital, noted that the Applicant “has some persisting postoperative similar discomfort” and “ limited exercise tolerance due to exertional dyspnoea the cause of which is not clear” – T17 p.138. Dr Nowakowski opined:

    “I wonder whether he is experiencing exertional atrial flutter with a rapid ventricular response which in the setting of significant diastolic dysfunction could cause heart failure symptoms. I also wonder whether he has had any deterioration in his ejection fraction postoperatively.”

46. Dr Nowakowski observed that the Applicant needed to be investigated with a 24-hour holter, but the Applicant was reluctant to drive two and a half hours to Canberra. Dr Nowakowski requested the Applicant’s GP to organise same in Bega and for the results send to him for investigation – T17 pp. 138 – 139.

47. Dr Nowakowski wrote his report after the conclusion of the qualification period. It is clear from that document that the Applicant’s cardiac condition had not stabilised and that further investigations and treatments were considered desirable. The fact that Dr Nowakowski’s diagnosis of the Applicant’s coronary condition is tentative, is itself a clear indicator that this condition was at that time still to be fully treated, let alone being stabilised.

48. The fact that the Applicant had aortic valve replacement surgery 11 weeks before lodging his claim starkly illustrates why his coronary condition was, by the end of the qualification period, still the subject of medical analysis and treatment.

49. Consequently, the Applicant’s cardiac condition was not fully treated or fully stabilised, during the qualification period. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent. Therefore, impairment points cannot be assigned.

    Knee condition

50. In a Medical Certificate dated 20 September 2017, Dr Rampe indicated that the Applicant suffered from “Complex meniscal tear of knee” – SFIC Attachment A p.3.

1. She indicated that the date of onset for this condition was around 2016 – SFIC Attachment A p.3. However, Dr Rampe noted in her medical report dated 5 October 2017 that a right knee complex meniscal tear was “diagnosed 18/9/17 on MRI done for investigation of worsening knee pain” – SFIC Attachment A p.4.

2. The condition, therefore, was diagnosed on 18 September 2017 and, accordingly, could not have been fully diagnosed during the qualification period. As a consequence no impairment points can be assigned for this condition.

   ACTIVE PARTICIPATION IN A PROGRAM OF SUPPORT

3. As the Applicant has not met the requirements of s 94(1)(b) of the Act, it is not necessary to consider the question of whether the Applicant has actively participated in a Program of Support.

   CONTINUING INABILITY TO WORK

4. Likewise, since the Tribunal cannot be satisfied that the Applicant has met the requirements of s 94(1)(b) of the Act, it is not necessary to consider the question of whether the Applicant has a continuing inability to work.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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Associate

Dated: 17 April 2018

Date(s) of hearing:	29 March 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Tsianikas, Department of Human Services