Leanne Walker and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 191
•22 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 191
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0052
GENERAL ADMINISTRATIVE DIVISION ) Re Leanne Walker Applicant
And
Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date22 March 2010
PlaceSydney
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal made on 28 November 2007.
...................[sgd]...........................
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – psoriasis – application by Secretary to set aside SSAT decision that applicant qualified for pension - whether 20 impairment points - whether continuing inability to work – decision of SSAT affirmed.
Social Security Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
22 March 2010 Senior Member Jill Toohey Background
1. Leanne Walker’s application for Disability Support Pension (DSP) was rejected by Centrelink on the ground that her disability did not meet the 20 point permanent impairment rating required by the Social Security Act 1991 (the Act).
2. The Social Security Appeals Tribunal (SSAT) thought differently. It found Ms Walker’s disability met the necessary 20 point rating and also affected her ability to work to the extent required by the Act. On 28 November 2007 the SSAT set aside Centrelink’s decision and substituted the decision that Ms Walker qualified for DSP from the date of her claim.
3. The Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) seeks review of the SSAT’s decision.
Ms Walker’s disabilities
4. Ms Walker is 43 years old. She has suffered from psoriasis over most of her body since she was a teenager. Despite various treatments over time, and with some fluctuations in its severity, it has persisted. Ms Walker has developed arthritis in her ankles, right thumb and right elbow, connected to her psoriasis. There is evidence to suggest that she suffers from depression, stress and anxiety related to her skin condition, but she is not being treated for the emotional aspects of her illness.
5. Ms Walker suffers from lower back pain which comes and goes. Mostly she manages the pain with valium and Panadeine Forte but, once or twice a year, it becomes severe enough for her to see her doctor for stronger painkillers. She has never been referred for pain management, and has not seen a physiotherapist, in relation to her back.
6. Ms Walker also has asthma and a reflux condition. The asthma flares up in winter, making it difficult for her to breathe, but is generally well controlled. The reflux condition occasionally plays up, depending on her diet, but is generally well controlled.
7. Ms Walker claims DSP on the basis of her psoriasis. Her back condition affects her ability to travel for treatment but it does not, of itself, form part of her claim. She agrees that her asthma and reflux do not form part of her claim.
The issue
8. Section 94(1) relevantly provides that a person is qualified for DSP if she or he has:
(a) a physical, intellectual or psychiatric impairment which is of 20 points or more under the Impairment Tables in the Act; and
(b) a continuing inability to work.
9. There is no dispute that Ms Walker’s psoriasis is a physical impairment of long standing. The issue for the Tribunal is whether, at the relevant time, it was of 20 points or more and whether, because of it, Ms Walker had a continuing inability to work within the meaning of the Act.
10. The relevant time is from 3 August 2007, when Ms Walker applied for DSP, to 2 November 2007, being 13 weeks from that date: Schedule 2 Section 4(1)(a)-(d) and (2)(a) of the Social Security (Administration) Act1999.
Is Ms Walker’s psoriasis investigated, treated and stabilised
11. To be assigned a rating on the Impairment Tables, a condition must be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as permanent if it is more likely than not that it will persist for more than two years. It may be considered fully stabilised if it is unlikely to significantly improve, with or without reasonable treatment, within the next two years: Introduction to Impairment Tables, Sch 1B to the Act.
12. The Secretary contends that Ms Walker’s psoriasis has not been fully treated and so cannot be assigned a rating.
13. In a job capacity assessment conducted on 22 August 2007, Ms Mackintosh, a registered psychologist, found Ms Walker’s psoriasis to be fully diagnosed, treated and stabilised. She noted that Ms Walker had had “extensive treatment to date with limited results” and “fluctuations in improvement” despite “optimal treatment”. She rated the psoriasis 10 points on the Impairment Tables on the basis that it caused “some interference” in Ms Walker’s normal activities.
14. On 2 August 2007, Ms Walker’s general practitioner, Dr Alexander, said she had a rash all over her body; she had been seen by a dermatologist for several years; she had had phototherapy and medication but was not on any treatment at present; the psoriasis would persist for more than 24 months and would fluctuate. On 3 August 2009, Dr Alexander reported that Ms Walker’s psoriasis was extensive; she was under specialist management; it was an ongoing problem and unlikely to be cured.
15. Dr Holt, specialist dermatologist, has treated Ms Walker for fourteen years. On 5 September 2007, Dr Holt reported that Ms Walker had severe generalised psoriasis and needed aggressive topical treatment and perhaps systemic treatment to bring it under control; she was presently unfit for work.
16. On 29 January 2008, Dr Holt responded to written questions put to her by the Secretary. In summary, Dr Holt stated that Ms Walker would be able to work for 15 hours per week within two years; she would not be able to work in a customer service occupation but, with training, could be suitably placed in another position such as office work.
17. In a further report, undated but received by Centrelink on 11 March 2008, Dr Holt responded to further written questions. Asked how the psoriasis affected Ms Walker’s ability to undertake normal daily activities, Dr Holt stated it did not. Asked the likely impact on her “functionality” over the next two years, Dr Holt stated Ms Walker would be able to function well “from the point of view of her psoriasis”. Asked what treatment she had had and whether there were other reasonable treatment options that might lead to significant functional improvement within two years, Dr Holt listed past treatment as including topical treatment, UVB phototherapy and Neotigisan, and stated “UVB phototherapy would be very helpful for her psoriasis”.
18. Finally, asked whether there were any types of work Ms Walker could not do on account of her psoriasis, Dr Holt stated she should avoid excess contact with water, chemicals, cleaning agents “eg. cleaning, cooking, car mechanic”. She noted “outdoor work would be okay”.
19. On 5 and 12 June 2008, Andrew Hacker, a registered psychologist, undertook a further job capacity assessment of Ms Walker. He noted that she had obvious severe inflammation of her skin in large patches and that she reported that phototherapy had been the most effective treatment, reducing the obviousness of her psoriasis and giving some reduction in itchiness.
20. Mr Hacker recorded that he had contacted Dr Holt to clarify aspects of her most recent report. Dr Holt confirmed that Ms Walker had undergone phototherapy in her rooms and it had substantially reduced the impact of her psoriasis, although it would never cure it. Dr Holt told Mr Hacker that treatments last from two to ten minutes and Ms Walker would need three treatments a week for six to eight weeks after which the frequency would likely reduce.
21. Mr Hacker’s assessment concluded that Ms Walker’s psoriasis was temporary because it was not fully diagnosed, treated and stabilised. On that basis, it could not be assigned a rating on the Impairment Tables.
22. Under cross-examination, Mr Hacker said he concluded that Ms Walker’s psoriasis was not fully treated and stabilised because it was likely that phototherapy would lead to significant improvement. He reached this conclusion based on Dr Holt’s statement that phototherapy would be very helpful, that it had been effective in the past and would substantially reduce Ms Walker’s symptoms. He conceded that Dr Holt had not said that it would lead to any functional improvement.
Ms Walker’s evidence and contentions
23. The decision of the SSAT records Ms Walker’s oral evidence before that tribunal about how psoriasis affects her life physically, socially and psychologically. She was supported before the SSAT by her husband and two friends who gave evidence. The Secretary does not take issue with any of the evidence given to the SSAT.
24. Ms Walker readily agreed in oral evidence before this tribunal that phototherapy gave her relief and greatly improved the appearance of her psoriasis, although the symptoms returned as soon as treatment stopped. She stopped the treatment because Dr Holt moved to rooms where phototherapy equipment was not available. She said she could go to another surgery in Georgetown, outside Newcastle, but would have to make a trip of about 45 minutes each way by car or public transport. She finds it difficult to travel on account of her back pain, although she concedes she can travel on good days. The cost of the treatment after Medicare rebate would be $12.50 per session. There would also be the cost of travel. Mr Walker’s husband and son also have medical conditions and she describes their home as “like a pharmacy” with associated costs.
25. There is little dispute that Ms Walker’s psoriasis is severe and affects her in many ways including emotionally. It affects her confidence and general wellbeing, as well as her ability to do things like housework.
What is further reasonable medical treatment?
26. In considering whether a condition is fully treated and stabilised, one must consider what treatment has occurred and whether any further reasonable treatment is likely to lead to functional improvement within the next two years. In this context, further reasonable treatment is taken to be treatment that is feasible and accessible, and where a substantial improvement can reliably be expected. If significant functional improvement cannot be expected, or if there is a medical or other compelling reason for a person not undertaking further treatment, then it is reasonable to consider the condition stabilised: Introduction to the Impairment Tables para 6.
27. Whether it is reasonable for Ms Walker to undergo further phototherapy has to be considered in context. Accessibility, including distance and how able a person is to travel, is relevant, as is cost.
28. I accept Ms Walker’s evidence that it would take her up to three hours to make each return trip to Georgetown for phototherapy. She would have to make the return trip three times a week, although less frequently after six to eight weeks. The weekly cost would be considerable. In the first six to eight weeks treatment would cost approximately $40 each week, allowing for the Medicare rebate. Transport to appointments, whether by public transport or private vehicle, would add to the cost. I am satisfied that, in Mrs Walker’s circumstances, cost affects the accessibility of treatment and makes it unreasonable to require her to continue to undergo treatment.
29. Further, I am not satisfied on the evidence that phototherapy can reliably be expected to lead to substantial improvement over the next two years. There is no evidence to suggest any permanence to the results. Ms Walker gave evidence, and the Secretary does not dispute, that her symptoms return as soon as treatment ceases.
30. Dr Holt’s reports are not especially helpful. It is not clear what she means by “phototherapy would be very helpful”. There seems little doubt that treatment would provide considerable relief but that is not the same as substantial or lasting improvement. It is also difficult to reconcile parts of Dr Holt’s reports, in particular her comments that Ms Walker’s psoriasis has no effect on her daily activities and that she should not work in cooking or cleaning.
31. The Secretary contends that Ms Walker’s psoriasis was not being optimally treated at the time of her claim. It is not clear to me just what this means; it is not the language of the Act, although it appears in Table 18 in the Impairment Tables for skin disorders. In any event, read the way contended for by the Secretary would seem to impose a test over and above that of reasonable treatment which I do not think can be justified.
32. In all the circumstances, I am satisfied that phototherapy is not reasonable treatment for the purpose of considering whether Ms Walker’s psoriasis is fully treated and stabilised. I find that it has been fully treated and stabilised for the purposes of the Act. It follows that it can be assigned a rating on the Impairment Tables.
What rating should Ms Walker’s psoriasis be assigned
33. Table 18 of the Impairment Tables provides:
In the evaluation of work‑related impairment resulting from a skin disorder, the actual functional loss is the prime consideration. However, where there is extensive cosmetic or cutaneous involvement, this should also be considered.
34. The criteria for each rating from nil to forty are:
NIL Signs and symptoms of skin disorder present and with treatment there is no limitation in the performance of normal daily activities.
TEN Signs and symptoms of skin disorder present despite optimal treatment and results in some interference with normal daily activities.
TWENTY Signs and symptoms of skin disorder present despite optimal treatment and results in significant interference with normal daily activities.
FORTY Very severe symptoms requiring continuous treatment which may include periodic confinement to home or hospital and needs considerable assistance with normal daily activities.
35. The Secretary contends that, even if Ms Walker’s psoriasis is found to be fully treated and stabilised, it should be rated at most 10 points on the Impairment Tables because it poses no more than some interference in her normal daily activities. I do not agree.
36. I accept Ms Walker’s evidence that her psoriasis affects virtually every aspect of her physical, social and emotional life. It is visible, even under her clothes; it is uncomfortable and itchy; she needs help with housework and with applying cream to her skin; she has to rest each day; it affects her social life and her confidence and is clearly distressing to her. No doubt her other conditions also contribute to her discomfort but I accept that her psoriasis alone is extremely debilitating.
37. I am satisfied that Ms Walker’s psoriasis results in significant interference with her normal daily activities and should be rated 20 points.
Does Ms Walker have a continuing inability to work?
38. Work, in the context of qualification for DSP 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.
39. The impairment must itself be sufficient to prevent the person from doing any work independently of a program of support within the next two years; and either is sufficient to prevent the person from undertaking a training activity within the next two years or 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. Availability of training activities or of work in the person’s locally accessible labour market are not factors to be taken in to account: s 94(2) and (3).
40. Ms Walker’s only employment was as a process worker at Steggles over 20 years ago. She left that job because the chemicals badly affected her psoriasis.
41. On 22 August 2007, Ms Mackintosh concluded in her job capacity assessment that Ms Walker could work for 15 to22 hours each week and that, with vocational assistance, she could in future work 23 to 29 hours per week.
42. On 5 June 2008, Mr Hacker assessed Ms Walker’s ability to work as 0 to 7 hours per week until 5 March 2009 “even with the assistance of appropriate intervention”. After that, he thought her work capacity would be 15 to 22 hours per week until 5 December 2009. He noted that, due to the “psychosocial impact” of the psoriasis, Ms Walker’s work capacity “may continue to be somewhat limited” but he anticipated that appropriate support could assist her gradually to increase her capacity to work.
43. As already noted, I have not found Dr Holt’s reports especially helpful in this regard. I accept the submission of Ms Walker’s solicitor that the comment “outdoor work would be okay” is without context; it may mean that it would not exacerbate her psoriasis but not necessarily that Ms Walker could perform outdoor work.
44. The medical reports refer consistently to Ms Walker’s severe psoriasis and the unlikelihood that it will improve. Mr Hacker’s assessment is instructive. He considered that, by March 2009, some 19 months after her application for DSP, Ms Walker could work only 0 to 7 hours per week.
45. On balance, while training might enable Ms Walker able to undertake some work, I am satisfied that, during the relevant period, her impairment was such (and remains so) that it was sufficient to prevent her from undertaking a training activity within the next two years or such activity was unlikely to enable her to do any work independently of a program of support within the next two years. I am satisfied that she has a continuing inability to work within the meaning of the Act.
Conclusion
46. I am satisfied that Ms Walker qualified at the relevant time, and still qualifies, for DSP. The decision of the Social Security Appeals Tribunal made on 28 November 2007 is affirmed.
I certify that the 46 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: ...........[sgd]...................................................................
Diana Weston AssociateDate of Hearing 19 January 2010
Date of Decision 22 March 2010
Representative for the Applicant Mr Derek Vale and Mr Matthew Unwin, Envoy Lawyers
Representative for the Respondent: Ms Louise Buchanan, AGS
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