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

[2021] AATA 2548

Lowe and Secretary, Department of Social Services (Social services second review) [2021] AATA 2548 (14 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6467

Re:Raymond John Lowe

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M Kennedy

Date:14 July 2021

Place:Adelaide

The decision under review is affirmed.

…………[Sgnd]……………………..

Member M Kennedy

Catchwords

SOCIAL SECURITY – disability support pension - whether medical conditions diagnosed, treated and stabilised during the qualification period - whether an impairment rating of 20 points or more existed under the Impairment Tables – 15 points assigned – decision under review affirmed

Legislation

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

Secondary Materials

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

REASONS FOR DECISION

Member M Kennedy

14 July 2021

1. Mr Lowe applied for Disability Support Pension (DSP) on 12 December 2019. On 11 January 2020, Mr Lowe’s application was rejected on the basis that he did not attract a sufficient impairment rating to qualify.

2. Mr Lowe applied for review.  The Department affirmed its decision on 10 June 2020.  Mr Lowe applied for review of that decision in the Tribunal (Social Services and Child Support Division) (AAT1) on 24 July 2020.

3. The AAT1 decided to affirm the Department’s decision.  In doing so, the Tribunal member decided that Mr Lowe had a lower leg impairment that attracted 10 points under Table 3 of the Impairment Tables, and a visual field defect that attracted 5 points under Table 12 of the Impairment Tables.  The Tribunal found that Mr Lowe’s other medical conditions were not fully diagnosed, treated and stabilised and so could not attract any impairment points.  As the Tribunal found that Mr Lowe did not have at least 20 points under the Impairment Tables, the Tribunal found that Mr Lowe was not medically qualified for DSP and affirmed the decision under review.

4. Mr Lowe applied to the General Division of the Tribunal (AAT2) for review of the AAT1 decision on 19 October 2020.

   CONSIDERATION

5. Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act).  It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person’s impairment is of 20 points or more under the Impairment Tables.

6. Qualification must be established in respect of the qualification period. In this matter, the qualification period is from 12 December 2019 to 12 March 2020[1].

   [1] Social Security (Administration) Act 1999, sch 2, part 2, cl 4.

7. The Impairment Tables referred to in section 94 are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination of 2011 made under section 26 of the Act. The Impairment Tables include rules as to how they are to be applied.

8. One such rule as to the application of the Impairment Tables is that an impairment rating can only be assigned if a person’s condition is ‘permanent’.  That term is further defined to  mean that the condition has been ‘fully diagnosed’ by an appropriately qualified medical practitioner, has been ‘fully treated’ and ‘fully stabilised’.  Instruction as to assessing each of those terms is provided for in the rules for applying the Impairment Tables.

   Hyperemises / Cyclical Vomiting Syndrome

9. Mr Lowe told me that he has suffered from bouts of vomiting since he was an infant.  This condition has resulted in extensive periods of hospitalisation for Mr Lowe into his adulthood.  Mr Lowe and his witness, Ms Edwards, explained that the extensive periods of hospitalisation have had a highly adverse impact on Mr Lowe’s life and family.  The condition has precipitated other functional incapacity for Mr Lowe as explained later in these reasons. 

10. Mr Lowe has addressed Gastroenterological Oesophageal Reflux Disease (GORD) in his written submissions to the Tribunal, and explained in his evidence that he considers the GORD condition and the cyclical vomiting condition to essentially be the same thing.  Mr Lowe also mentioned that on endoscopy, hiatus hernia has been identified. There are references in the clinical notes to the identification of Mallory-Weiss tears and oesophagitis.

11. The medical evidence regarding the underlying cause of the cyclical vomiting is inconclusive.  Dr Allen, a respiratory and sleep physician stated on 22 November 2014 that he considered the cyclical vomiting to be anxiety related, and observed that the symptoms did not improve with hot showers, making cannabis related cyclical vomiting unlikely[2].

    [2] T14, p 262

12. The balance of medical evidence however, (Dr Thompson (12 January 2015), Dr Macaulay (2 July 2019) and Dr Lim (22 October 2019)[3]) is inclined to the position that the cyclical vomiting was likely to be associated with Mr Lowe’s extensive use of cannabis.

    [3] T14

13. In response to my questions, Mr Lowe explained that over the years many doctors had treated him for the acute phase of his cyclical vomiting, and he had undergone specialist investigation by gastroenterologists, but did not consider he had an ongoing therapeutic relationship with a specialist gastroenterologist with a view to getting to the bottom of what was causing the vomiting.  Noting that one doctor had speculated that the condition might be the product of anxiety, Mr Lowe told me that he did not agree with that theory.

14. The Secretary contends that the hyperemises / cyclical vomiting syndrome cannot be considered to be fully diagnosed, treated and stabilised in these circumstances.  I must agree.  It is remarkable that, despite the extensive periods of hospitalisation and the effect this condition has had on Mr Lowe’s life and wellbeing, a clearer medical diagnosis and explanation has not emerged from an appropriate specialist, be that a Gastroenterologist, Addiction Medicine Specialist, Psychiatrist or General Physician.

15. If, for example, the balance of medical opinion was that the condition is THC-induced cyclical vomiting through cannabis use, it would follow that reasonable treatment would include abstinence from use of that drug, or at least sustained and demonstrated attempts at drug rehabilitation.  If the problem was gastroenterological in nature, then reasonable treatment might potentially involve surgery.  If the problem was anxiety-related, then mental health intervention would be considered reasonable treatment.

16. I find that it cannot be said that the hyperemises / cyclical vomiting syndrome is fully diagnosed in circumstances where there is no clear medical determination as to aetiology.  Furthermore, and it follows, that in the absence of a treatment history or proposal from a relevant speciality, other than in what appears to be the medically acute phase of the condition, it cannot be said that the condition is fully treated and stable.

17. The functional incapacity relating to hyperemises / cyclical vomiting syndrome does not attract any points under the Impairment Tables as it is not a condition that is fully diagnosed, treated or stabilised.

    Visual function

18. Mr Lowe suffered a cerebrovascular accident in 2008 associated with a bout of vomiting. He also suffered an orbital fracture in the left eye socket in 2009.  Dr McGovern (Opthalmologist) confirmed on 6 February 2020 that the cerebrovascular accident has left Mr Lowe with a right superior visual field defect.  Dr McGovern also noted that Mr Lowe had reported diplopia when watching television.  Dr McGovern suggested prism lenses and referred Mr Lowe back to an optometrist.  Dr McGovern found that Mr Lowe’s visual acuity was 6/6 on the right and 6/4 on the left[4].  Mr Lowe had not followed up the lens prescription at the time of the application for DSP or during the qualification period, but confirmed at the hearing that he now has the glasses prescribed, and when he uses them they completely correct the diplopia.

    [4] T14, p 315

19. The Secretary accepts that the visual field defect arising out of the cerebrovascular accident is permanent, fully treated and stabilised. I also accept this, noting in particular the consistent references to the cerebrovascular accident and the opinion of Dr McGovern which is informative of the nature of the condition at the time of the application for DSP.

20. The diplopia was not fully treated and stabilised within the 13 week qualification period (and so the functional incapacity can attract no points), but is fully treated now with the prescribed prism lensed glasses.  Based on Mr Lowe’s evidence, I find that the diplopia presents no functional incapacity now that it is corrected by glasses in any event.  In this regard, functional incapacity for visual function must be assessed with the person using any visual aids the person usually uses.

21. Functional incapacity in relation to visual function is assessed in accordance with Table 12 of the Impairment Tables. There is mild functional impact on activities involving visual function where the person “looking straight ahead has some difficulty seeing objects to the side or in the centre of their field of vision”, and “the person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses”[5]. This description is apt for Mr Lowe’s visual field defect.

    [5] Table 12, 5 points (1) and (1)(c). 

22. I have considered whether there is moderate functional impact  on activities involving visual function so as to attract 10 points under Table 12, but consider the descriptors in relation to 5 points are more accurate in relation to the right visual field defect described in the medical evidence to the descriptors for 10 points.

23. I find that Mr Lowe has a fully diagnosed, treated and stabilised right visual field defect that attracts 5 impairment points under the Impairment Tables.

    Mental Health Function

24. The medical records available to the Tribunal span many years, and there are a number of references to the presence of anxiety and depression as either a provisional diagnosis or operative diagnosis.  On occasion, the anxiety is described to be in the context of alcohol or benzo withdrawal (15 and 16 July 2008 Queen Elizabeth Hospital clinical notes[6]).  From 12 January 2015, there is evidence that Mr Lowe’s General Practitioner has maintained Mr Lowe on Efexor and diazepam[7].  It is clear that Mr Lowe’s General Practitioners proceed on the basis that Mr Lowe has diagnosed anxiety and depression.  This is most recently confirmed in a mental health treatment plan Mr Lowe provided to the Tribunal dated 31 August 2020, but there are references to anxiety disorder in the clinical notes from the General Practitioner’s clinic as early as 1999[8].

    [6] T14, p 244 - 254

    [7] T14, p 222

    [8] T14

25. Mr Lowe has also cogently explained that given he had a cerebrovascular accident associated with vomiting, the onset of the cyclical vomiting syndrome symptoms trigger an anxiety response for him.

26. In order for a mental health disorder to be considered as diagnosed, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist, if the diagnosis is not made by a psychiatrist.  This is an express requirement inserted into the rules that apply to Table 5 – Mental Health Function.

27. There is no medical evidence before me from a clinical psychologist.  The medical evidence arising out of Mr Lowe’s admissions to hospital include review by medical practitioners who appear to be undertaking psychiatry rotations (given the focus of the notes), but I do not construe the provisional notes as amounting to a diagnosis by a psychiatrist.  I note that Ms Edwards told me that Mr Lowe was once subject to an Involuntary Treatment Order, but I have no records relating to that incident.

28. In my view, the medical evidence available to me does not permit me to find that Mr Lowe has a diagnosis of a mental health disorder for the purposes of applying a rating under the Impairment Tables because there is no diagnosis from a psychiatrist or a clinical psychologist.  I am sure that Mr Lowe does struggle with mental health symptoms, and this is well established by the medical evidence as a whole.  For this reason, it is reassuring to note from Mr Lowe that he has recently commenced consulting with a psychiatrist.  Mr Lowe is aware of the way the qualification period for DSP operates, and is preparing to lodge another application for DSP once his psychiatrist has concluded his investigations and prepared a report.

29. For completeness, the observations I have made above regarding the hyperemesis and cyclical vomiting syndrome not being fully treated and stabilised are also germane to the absence of diagnosis of a mental health disorder by a psychiatrist or clinical psychologist.  It may be that confirmation or exclusion of that condition as associated with a mental health disorder will assist Mr Lowe in pursuing specific treatment of the condition other than in its acute phase.

30. As the mental health disorders referred to in the medical evidence are not accompanied by a diagnosis by a psychiatrist or a clinical psychologist, I am unable to assign Impairment Points under Table 5.

    Lower limb function

31. Mr Lowe underwent a left iliac and femoral embolectomy in 2017. Upon review by Dr Herbert (Vascular Surgeon) on 25 September 2019, Dr Herbert reported a history of left foot pain and sensory symptoms, and the discovery of extensive small vessel disease in the foot.  Dr Herbert recorded that Mr Lowe’s symptoms were stable, and that Mr Lowe experiences numbness in two toes.  Mr Lowe takes anticoagulants and medication for neuropathic pain[9].

    [9] T14, p 303 – 304

32. On 4 May 2020, Dr Vinh Thoi (Dr Vinh) reported that Mr Lowe is unable to perform 10 minutes of walking due to exacerbation of his symptoms[10].

    [10] T14, p 319

33. In the course of giving evidence, Mr Lowe was taken to notes made by Dr Thoi (Dr Vinh) in the GP Mental Health Treatment Plan on 31 August 2020.  In that document under ‘current social history’, it was recorded that Mr Lowe was running water at football practice and walked his dog up to 2 kilometres. It was reported he had not been troubled by activity recently.  Elsewhere in the document, reference is made to Mr Lowe walking the dog and being unable to make it home due to the pain, but being able to walk the dog for 5 minutes ‘2 to 3 weeks ago’.

34. Mr Lowe did not think he had told Dr Vinh that he had been running water for his son’s football team or walked his dogs for 2km.  He thought perhaps this was a goal or aspiration he had discussed with the doctor.  I observed that the format of the notes and their presence under ‘current social history’ did not suggest they had been recorded as goals.

35. In his oral evidence, Mr Lowe said that he cannot walk to the local shops, but his ex-wife (Ms Edwards) will drive him.  Once at the shops he is able to walk from the car to the shops, and walk around the shops.  Mr Lowe also said he is able to get up from a chair without assistance, and is able to get out of the car without assistance.  He does not use any mobility aids.

36. The Secretary accepts, as do I, that Mr Lowe’s lower limb condition of ischaemia and neuropathy is fully diagnosed, treated and stabilised.

37. As to functional incapacity, this is to be assessed under Table 3 – Lower Limb Impairment.  The Table assigns 20 points to a severe functional impact, and 10 points to moderate functional impact.  The Table does not provide for 15 points, and I must only assign points in accordance with the Table.

38. In order to assign 20 points, I must be able to find that Mr Lowe is unable to walk around a shopping centre without assistance, walk from the carpark into the shopping centre without assistance or stand up from a sitting position without assistance.  Mr Lowe’s evidence on these matters therefore does not allow me to assign 20 points.

39. In order to assign 10 points, I must be able to find that Mr Lowe is unable to walk far outside his home, and is able to walk around a shopping centre.  I consider this description of functional incapacity reflects the evidence given by Mr Lowe accurately.

40. I believe an issue arises in relation to whether 5 or 10 points is most appropriate given the notes made on the Mental Health Treatment Plan.  On balance however, I accept Mr Lowe’s evidence to the effect that he is unable to walk far outside his home and must be driven to the local shops.  I assign 10 points to Mr Lowe’s lower limb functional incapacity.

    Mr Lowe does not qualify for DSP

41. For the above reasons, I assess Mr Lowe’s overall impairment rating at 15 points.  It is an essential criterion for qualification for DSP that a person’s impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act.

42. In those circumstances, it is not necessary to consider whether during the qualification period the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

43. As Mr Lowe does not have 20 points or more under the Impairment Tables, he does not qualify for DSP within the qualification period.  The decision to reject his claim was therefore legally correct.

44. I will affirm the decision under review.

45.     I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Member Kennedy.

   ……………[Sgnd]……………………

  Administrative Assistant Legal

 Dated:  14 July 2021

Date of hearing:	3 June 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Riley Calaby, SERVICES AUSTRALIA