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

[2021] AATA 3524

Low and Secretary, Department of Social Services (Social services second review) [2021] AATA 3524 (1 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2079

Re:David Wayne Low

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:1 October 2021

Place:Adelaide

The Tribunal affirms the decision under review.

......................[SGND]............................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – disability support pensions – claim for disability support pensions rejected – whether applicant’s medical conditions fully diagnosed, treated and stabilised during qualification period – whether applicant attracted an impairment rating of at least 20 points – whether applicant had a continuing inability to work – decision under review affirmed

Legislation

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

Cases

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Secondary Materials

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

REASONS FOR DECISION

Senior Member K Millar

1 October 2021

INTRODUCTION

1. Mr Low applied for a disability support pension on 17 March 2017 because of a skin condition, a cardiac condition, and a hearing impairment.  On 2 May 2017 his claim was rejected.  This decision was affirmed by an authorised review officer and by Tier 1 of this Tribunal.  Mr Low has applied for a further review of this decision. 

2. Mr Low again applied for disability support pension on 26 April 2019, and his application was granted.

3. Mr Low says his medical conditions were the same in March 2017 as when his claim was granted in 2019 and wants his disability support pension backdated to 17 March 2017. 

4. The Secretary contends that as he applied for a review of the decision on 6 April 2021, more than 13 weeks after he was informed of the 2017 decision, a favourable decision can have no effect on the date from which he can be paid disability support pension, and sought dismissal of the application.  In addition, the Secretary states Mr Low did not meet the requirements for a disability support pension when he applied for this payment in 2017.

5. The issues are whether the application should be dismissed, and if not whether Mr Low qualified for disability support pension following his claim on 17 March 2017.

   APPLICATION FOR DISMISSAL

6. The Secretary sought dismissal of the application under s 42B of the Administrative Appeals Tribunal Act 1975 on the basis that the application had no reasonable prospect of success.

7. Where a person applies for internal review of a decision more than 13 weeks after the original decision, a favourable decision takes effect from the day the application for internal review was made.[1]

   [1] s 107(3) of the Social Security (Administration Act) 1999 (the Administration Act). 

8. Mr Low first requested internal review of the decision on 5 June 2020, more than 13 weeks after the original decision.  He was granted a disability support pension from 26 April 2019.  This means that even if his application for review is successful, it would not result in disability support pension being payable to him because the earliest date of effect of a favourable decision is 5 June 2020, at which time he was already receiving disability support pension.

9. In this case there is a contact recorded in the documents provided by the Secretary showing Mr Low contacted Centrelink on 18 August 2017 about a claim for disability support pension.  It is at least arguable this is a request for a review of the decision.

10. The Secretary conceded it was possible for Mr Low to succeed in his application, but this would not result in a payment to him.  In effect, the application to dismiss requires reading “no reasonable prospects of success” as “no reasonable prospects of success in obtaining a payment”.  This adds a qualification that success results in payment of a social security pension or benefit.  A person may seek review of a decision and be successful other than for the purposes of receiving a payment.  Mr Low stated that he wanted to continue with his application despite the possibility that it would not result in the payment of disability support pension to him from the date of his claim.

11. The Secretary did not argue that the application was frivolous, vexatious, misconceived or lacking in substance, or that it was otherwise an abuse of process of the Tribunal.  The Tribunal declined to dismiss the application. 

    QUALIFICATION FOR DISABILITY SUPPORT PENSION

12. Under s 94(1) of the Social Security Act 1991 (the Act) to qualify for a disability support pension the person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have  a continuing inability to work.

13. The point in time at which the person must meet these requirements starts on the date Mr Low claimed disability support pension (DSP) and ends 13 weeks after this date.[2]   Mr Low first contacted Centrelink on 3 March 2017, and the 13 week period ends on 2 June 2017.  This is the assessment period for the purpose of his claim for DSP.  Any new conditions, or a deterioration in Mr Low’s condition, or conditions that were only fully treated, diagnosed and stabilised after the end of the assessment period cannot be considered in assessing his qualification for disability support pension.

    [2] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act, and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

14. The Secretary accepts Mr Low had physical impairments in the assessment period, but disputes he has impairments of 20 points or more under the impairment or that even if he did, he did not have a continuing inability to work.

    Does Mr Low have an impairment of 20 points or more under the impairment tables?

15. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

16. The Impairment Tables set out rules about when an impairment rating can be assigned and a rating system for the impairment.  To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment that results from the condition must be more likely than not, in light of available evidence, to persist for more than two years.[3]

    [3] Clause 6(3) of the Impairment Tables.

17. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, fully stabilised and more likely than not to persist for two years.[4]

    [4] Clause 6(4) of the Impairment Tables.

18. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised.  A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] 

    [5] Clause 6(6)(a) of the Impairment Tables.

19. Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7] 

    Which of Mr Low’s conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?

    [6] Clause 6(7)(c) of the Impairment Tables.

    [7] Clause 6(7)(e) of the Impairment Tables.

20. The Secretary accepts Mr Low’s rosacea and left ventricular dysfunction were fully diagnosed, treated and stabilised in the assessment period and can be assigned an impairment rating under the Impairment Tables.

21. It is submitted his hearing loss was not fully treated and cannot be assigned any impairment points.  Mr Low states his hearing loss was permanent at the assessment period and can be assigned points.

22. A report dated 10 April 2014 from Dr Tom Frayne,[8] an ear, nose and throat surgeon, states Mr Low has permanent hearing loss and tinnitus, and maximal medical improvement has been achieved.  Dr Frayne states that Mr Low would benefit from the use of hearing aids to act as tinnitus maskers and to improve his hearing.  Mr Low said he first tried hearing aids in 2019, and this has resulted in an improvement.  He said he did not get around to hearing aids before then as he was fighting with WorkCover.

    [8] Supplementary T-Documents 11, page 318

23. Hearing aids are a treatment for the permanent hearing loss and tinnitus Mr Low suffered, and hearing aids were planned treatment for Mr Low from 2014 which was anticipated to, and did, improve his hearing.  He did not take up this option until 2019.  In the assessment period this condition was not was not fully treated and cannot be assigned any impairment points. 

24. Mr Low’s condition of left ventricular dysfunction was described by his general practitioner as permanent in medical certificates of 21 July 2016 and 8 February 2017.[9]  The medical certificates state this condition is likely to deteriorate over the next 2 years.

    [9] T-Documents 5 and 6.

25. Mr Low was reviewed by a cardiologist who reported on 14 December 2016 that his ECG shows moderate left ventricular concentric left ventricular hypertrophy.  The Job Capacity Assessment of 1 May 2017 states Mr Low reported having a low cholesterol diet and reducing his alcohol intake.  He is reported to be on medication for the condition and there were no indications of a planned change to this treatment regime.  The medical reports and Job Capacity Assessment show this condition is fully diagnosed, treated and stabilised. 

26. A further diagnosis of Chronic Obstructive Pulmonary Disease (COPD) appears on medical certificates issued 20 July 2017 and 2 November 2017 and state the symptoms include a cough and breathlessness.  These certificates were issued after the assessment period but state the date of onset of the condition is 2016.  This condition is not listed on medical certificates, which asks for all medical conditions which impact on patient’s capacity for work or study to be listed, in or before the assessment period.  The report of the cardiologist dated 14 December 2016 reports that Mr Low started having a dry cough which the cardiologist thought most likely due to his medication.  The cardiologist does not report a diagnosis of COPD. 

27. The Tribunal finds that while the date of onset of COPD was 2016, the symptoms did not start affecting Mr Low’s capacity for work or study until July 2017.  It also finds this condition was not diagnosed until July 2017, which is after the assessment period. 

28. The condition of rosacea is reported in the medical certificates of 21 July 2016 and 8 February 2017 as an exacerbation of an existing condition and the prognosis is stated to be uncertain.  The medical certificates state Mr Low has a severe photosensitive reaction that the specialist has been unable to improve.  A report from occupational physician Dr Pers for WorkCover dated 22 June 2014 states this condition was stable, the degree of permanent impairment is fully ascertainable, and maximum medical improvement for WorkCover purposes has been reached.  This condition is fully diagnosed, treated and stabilised.

    Impairment points 

29. As Mr Low’s cardiac and skin conditions are fully diagnosed, treated and stabilised, they can be assigned impairment point in accordance with the Impairment Tables.

    Left Ventricular Dysfunction

30. Turning first to Mr Low’s cardiac condition, the functional effect of this condition is assessed by reference to Table 1 as it relates to functions requiring physical exertion and stamina. [10]  The introduction to Table 1 states, among other things, that self-reports of symptoms alone is insufficient and there must be corroborating evidence of the person’s incapacity, such as a report from the person’s treating doctor, a report from a medical specialist confirming the diagnosis commonly associated with cardiac impairment, or results of exercise, cardiac stress or treadmill testing.  In this case there are medical certificates from his general practitioner and a report from a cardiologist. 

    [10] The Impairment Tables.

31. Mr Low said his heart condition was caused by his blood pressure, and he developed this condition due to the stress of dealing with WorkCover.

32. In March 2017 he said his blood pressure was a lot worse because in 2016 he had finalised his case with WorkCover.  He said if he hadn’t finalised his claim, he would have had a heart attack.  He said he could not walk far, and as soon as his blood pressure went up, he had chest pain and shortness of breath.  He says his condition made getting around a lot harder and this shortness of breath was described in the papers.

33. At the time Mr Low said he attended the Commonwealth Rehabilitation Service (CRS) which tried to get him back to work and find work he could do.  Mr Low said he was sent to help at the local Lions Park with tasks such as mowing, fencing, and helping to clean up.  He said he could not do that, he would go for a couple of hours, and would just have to sit down all the time.  

34. He said he tried mowing his own lawn, which is only 10 square metres, and had to sit down a couple of times as he can’t push the lawnmower because he gets short of breath and pain in his chest and arms.   

35. The Job Capacity assessment of 1 May 2017 states Mr Low reported that he gets short of breath and his chest gets tight if he exerts himself such as walking long distances, climbing stairs, or mowing the lawn. 

36. The medical certificate dated 8 February 2017 states Mr Low has breathlessness and tiredness because of this condition.  The certificate dated 2 November 2017 also states he has breathlessness and tiredness from this condition.  It adds a further diagnosis of COPD, with a date of onset of 2016 and states this results in coughing and breathlessness on exertion. 

37. Later medical reports from 2019 include a GP Management Plan dated 22 February 2019 and medical certificates dated 10 April 2019 and 18 July 2019. 

38. The GP Management plan states Mr Low’s health care needs were “shortness of breath on minimal exertion”.  The medical certificate dated 10 April 2019 states he has COPD that results in “coughing and breathlessness on exertion, limits walking to 300 metres and is more breathless now than 12 months ago”. 

39. These reports show both a deterioration of his condition in the period prior to his claim for DSP in 2019 and report an impairment to which impairment points cannot be attributed as the condition was not yet diagnosed.  Symptoms to the extent described in these reports were not yet apparent in the assessment period.   

40. Mr Low said that the level of impairment in 2019 was caused by his heart condition rather than COPD.  This is not consistent with the medical report that lists COPD as the impairment that limits the distance he can walk.   The Tribunal does not accept Mr Low’s claim that his impairment was the same in 2017 as it was when his claim was granted in 2019.  

41. The requirements for 5 points under Table 1 are that the person:

    (a)experiences occasional symptoms such as mild shortness of breath, fatigue and cardiac pain when performing physically demanding activities and due to these symptoms the person has occasional difficulty;

    (i)walking to local facilities without stopping to rest or;

    (ii)performing physically active tasks or heavier household activities such as mowing the lawn;

    (b)and is able to perform most work-related tasks other than tasks involving heavy manual labour.

42. To have an impairment rating of 10 points, the person:

    (a)experiences 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:

    (i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

    (ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

    (b)is able to:

    (i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

43. The Tribunal finds in the assessment period Mr Low was able to mow the lawn and assist with heavier tasks at the Lions Club park but required rest when performing these tasks.  His reported difficulty walking short distances emerged in 2019 and was not apparent in 2017 when he reported shortness of breath on walking long distances to the Job Capacity Assessor.  Mr Low reported needing to find a park close to a shopping centre, however the Tribunal is not satisfied this was apparent in the assessment period rather than more recently given reported deterioration of his condition. 

44. The Tribunal finds that in the assessment period the functional effect of Left Ventricular Dysfunction attracts 5 points on Table 1 of the Impairment Tables.

    Skin Condition

45. The functional effect of Mr Low’s skin condition is assessed under Table 14 of the Impairment Tables which addresses skin conditions. The diagnosis must be made by an appropriately qualified medical practitioner and self-report of symptoms alone is insufficient.

46. Mr Low said his skin condition relates to a substance used at work.  He said he can’t go out in the sun because his skin burns, and even some lights burn his skin.  He still does not know what the toxins may have been. 

47. The requirements for 10 points set out in Table 14 are that the person:

    … has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).

48. Mr Low’s skin condition is described in an occupational physician report by Dr Pers dated 22 June 2014 which was prepared for Workcover.  This refers to assessment by two dermatologists.   Dr Pers reports Mr Low has a skin disorder with signs and symptoms constantly present and he has a limited ability to perform some activities of daily living including gardening and recreational activities such as fishing. 

49. The Tribunal finds that Mr Low’s skin condition attracts 5 points on Table 14 of the Impairment Tables.

    CONCLUSION

50. Mr Low’s total impairment rating is 15 points. This is less than the 20 points required by s 94(1) of the Act and he did not qualify for disability support pension in the assessment period. As a result, the decision under review is affirmed.

51. As the decision under review is affirmed, it is unnecessary to examine whether he applied for a review at any earlier point in time. 

52. Mr Low feels understandably aggrieved that he was later granted disability support pension when he considers his condition was the same as it was in his earlier claim, and the Tribunal does not doubt this is his genuine recollection.  However, the medical reports do not support this recollection, and report his condition worsened significantly in 2018. 

    DECISION

53. The Tribunal affirms the decision under review.

54.     I certify that the preceding fifty- three (53) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

.................[SGND]..........................

Associate

Dated:  1 October 2021

Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Amy Simpson, Services Australia