Mario Sayers and Secretary, Department of Social Services

[2015] AATA 410

[2015] AATA 410 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3210
Re	Mario Sayers
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	11 June 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple medical conditions – sleep apnoea not fully diagnosed, treated and stabilised – other conditions attract insufficient impairment points – medical criteria not satisfied – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (Cth) s 6

REASONS FOR DECISION

Senior Member Bernard J McCabe

11 June 2015

1. Mr Mario Sayers suffers from a number of health conditions, and he says he is unable to work long hours. He applied for the Disability Support Pension (DSP) on
   2 December 2013. The claim was rejected because the Secretary was not satisfied
   Mr Sayers satisfied the so-called ‘medical criteria’ in s 94 of the Social Security Act 1991 (“the Act”). Mr Sayers has asked this Tribunal to reconsider whether he is entitled.
   The answer to that turns on:

   ·Whether his sleep apnoea condition was fully treated and fully stabilised at the relevant time;

   ·How many impairment points – if any – should be assigned under the Impairment Tables as a consequence of the sleep apnoea and other conditions;

   ·Whether Mr Sayers’s inability to concentrate is the product of neuropathic pain, or simply a consequence of exhaustion; and

   ·Whether Mr Sayers was, at the relevant time, able to work about 15-22 hours per week notwithstanding his conditions.

2. I am not persuaded Mr Sayers satisfied the medical criteria in s 94 during the relevant period. I explain my reasons below.

   The medical criteria

3. Section 94(1) of the Act sets out three criteria that must be satisfied before a sick person who has difficulty working can qualify for DSP. It is important to appreciate the criteria must be applied retrospectively: I must decide whether the applicant was able to satisfy the criteria at the relevant time, which – in this case – is the 13 week period that followed his claim on 2 December 2013. His conditions may have deteriorated since that time, but I am not addressing his health or the extent of his impairment at the time of the hearing.

4. The first requirement in s 94(1)(a) of the Act is that the applicant must have a physical, mental or psychiatric impairment. The requirement is satisfied in this case: Mr Sayers suffers from sleep apnoea, diabetes (type 2), hypertension, chronic jaw pain, and
   gastro-oesophageal reflux syndrome (GORD). (The report of the applicant’s treating doctor also referred to an irregular heartbeat, but there is no evidence that condition has occasioned impairment so I will not consider it further. Mr Sayers also referred to a back condition which he says has been an issue for some time, but which has only recently been the subject of imaging studies that reveal bulging discs. I will not consider that information in the course of this claim because it was not available – and the condition may not have been present – during the period under review.)

5. The second requirement is more onerous in a case like this. It requires that the applicant’s conditions be assigned at least 20 points under the relevant Impairment Tables.
   The Impairment Tables do not purport to measure how sick you are; they focus instead on the functional impact of health conditions.

6. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
   (“the Determination”). The tables include a preamble that says a rating cannot be assigned in respect of a condition unless the decision-maker is satisfied the condition is permanent – which means it is fully diagnosed, fully treated and fully stabilised within the meaning of ss 6(5) and 6(6) of the Determination, and is likely to persist for more than 2 years: s 6(3) of the Determination.

7. The Secretary says there is no suggestion in the evidence that hypertension or GORD have any functional impact, so it is impossible to allocate impairment points in respect of those conditions. I accept that is so. But there is a live issue with respect to the applicant’s other conditions. I will consider each in turn.

   Sleep apnoea

8. Mr Sayers’s most significant health problem is sleep apnoea. He has had the condition for some time. He recalled in his evidence that he participated in a sleep study in around 2008. He was recommended for a trial of a CPAP (continuous positive airway pressure) mask but he said he was unable to tolerate it. He recalled being sent to see a maxillofacial surgeon who inserted screws and a plate in his jaw. The procedure was designed to treat the sleep apnoea condition. He participated in a further sleep study in September 2009 but he still experienced sleep apnoea and the treating specialist recommended a further CPAP trial: exhibit one at p 91.

9. There is no evidence that Mr Sayers participated in a further CPAP trial or any other sleep studies before he made his claim for DSP at the end of 2013. He told me at the hearing that he recently participated in a sleep study but he had not been provided with the results. The fact he had a further study may indicate the condition has not been fully treated – or it may simply be a routine review. It is difficult to draw any inference from the fact of the recent study. But the fact that further studies were recommended in 2009 but not undertaken until 2015 tends to suggest the condition was not fully treated and stabilised during the period under review. In those circumstances, I cannot assign an impairment rating with respect to the sleep apnoea condition. I will leave for another day the question of whether the answer might be different on a fresh claim for DSP in light of the report from the latest sleep study.

   Diabetes

10. It is possible the applicant should be assigned up to 10 points under Table 1, which deals with general functioning, as a consequence of his diabetes. Mr Sayers says his diabetes makes it harder for him to exert himself. Dr Garcia referred to the presence of classic symptoms of diabetes in the form of tiredness and polyuria (exhibit 1 at p 40).
    After hearing Mr Sayers describe his physical limitations at the relevant time, however, I cannot be satisfied he should be assigned more than 10 points under Table 1. He said he was unable to undertake heavy physical work for a long period – but there was no reason why he could not undertake light sedentary work as a consequence of his diabetes.
    He gave evidence of his ability to undertake light house work and move about a shopping centre unaided. He did not report a severe functional impact within the meaning of
    Table 1, so he cannot be allocated more than 10 points.

    Chronic jaw pain

11. The Secretary concedes 10 points should be assigned under Table 1 in respect of the applicant’s chronic jaw pain. I disagree: the concession was apparently made on the assumption that the applicant is affected by his pain medication. But the applicant said in his oral evidence that he did not take the pain medication precisely because it made him drowsy. I do not think it would be appropriate to allocate impairment points in those circumstances.

12. The applicant also referred to difficulties with communication as a consequence of his jaw problems. Communication difficulties can be assessed under Table 8. He said he experiences pain after he talks for long periods, and he has some difficulty being understood. Dr Garcia, the treating general practitioner at the time, suggested there was a moderate impact, but the job capacity assessor concluded the impact was minor. I think I should prefer the assessment of the job capacity assessor in this case: the assessor is experienced in assessing the functional impact of conditions. A mild functional impairment attracts a rating of 5 points.

13. That leaves only the question of whether points should be assigned with respect to the evidence of neuropathic pain under Table 7. Table 7 deals with brain function; if the applicant is experiencing neuropathic pain and that pain impacts on his concentration, memory and attention, an impairment rating might be assigned under that table. But the evidence of neuropathic pain is limited. Dr Ahuja, a pain management specialist, said there was a possibility of an element of neuropathic pain, and the applicant has certainly referred to poor concentration and memory – but any impairment of neurological or cognitive function might also be attributable to the poorly controlled sleep apnoea (exhibit 2 at pp 55-56). The evidence of neuropathic pain in the material is too tenuous to justify a separate rating in circumstances where the balance of the medical evidence points to sleep apnoea as the source of Mr Sayers’s difficulties.

    Conclusion

14. The applicant needs 20 points under one or more impairment tables in order to satisfy the medical criteria, but I am not satisfied he can be assigned more than 15 points in respect of the period under review. It is possible additional evidence with respect to his sleep apnoea and chronic pain might assist him if he were to make a fresh claim; he also referred to a back condition, although that condition sounds as if it has not yet been properly investigated. But I cannot be satisfied on the evidence before me that Mr Sayers was eligible to receive the DSP when he claimed it on 2 December 2013. In those circumstances, I do not need to address whether he could, at the relevant time,
    work 15-22 hours notwithstanding his conditions. The decision under review must be affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 11 June 2015

Date of hearing	18 May 2015
Applicant	By video
Advocate for the Respondent	Ms D Smith Department of Human Services