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

[2017] AATA 2282

McDonald and Secretary, Department of Social Services (Social services second review) [2017] AATA 2282 (20 November 2017)

Division: General Division

File Number:            2016/3467

Re: Mr Robert McDonald

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:                 Ms Anna Burke, Member

Date:20 November 2017        

Place:Melbourne

The decision under review is affirmed.

[sgd]........................................................................
Member

DISABILITY SUPPORT PENSION –– whether qualified – if gross lymphoedema disorder fully diagnosed, treated and stabilised – if neurocognitive disorder fully diagnosed, treated and stabilised – whether impact of treatment regime impacts ability to function – whether impairment attracts rating of 20 points or more under impairment tables – whether program of support had been undertaken

LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991

REASONS FOR DECISION

Ms Anna Burke, Member

20 November 2017

INTRODUCTION

1. Mr McDonald (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant Mr McDonald a disability support pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).

2. On 9 August 2015 Centrelink found that Mr McDonald was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Social Services.

3. This application was heard on 17 October 2017 via telephone. Mr McDonald was self-represented and Mr Joshua Lessing, solicitor with Sparke Helmore Lawyers appeared for the Respondent.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Mr McDonald:

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

   (b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (d)has a continuing inability to work.

   BACKGROUND

5. Mr McDonald, who is now 61 years of age, lives in regional Victoria and previously worked as a journalist and naturalist. In 1976 he had a motorcycle accident in which he sustained a crush injury to the left calf and in 1993 he was bitten by a copperhead snake to the lower limb. It is believed that these issues have contributed to Mr McDonald’s gross lymphoedema of the left leg. In 2012 Mr McDonald was bitten by a tiger snake and lost consciousness, this condition has led to a mild neurocognitive disorder which has resulted in him giving up work as a freelance journalist.

6. On the 22 June 2015 Mr McDonald made an application for DSP, citing his medical conditions as: lymphoedema, high blood pressure and memory lapses.

7. On the 3 August 2015 Centrelink had a job capacity assessment (JCA) conducted on Mr McDonald. The JCA report found:

   ·     Traumatic brain injury, medical report states he had mild neurocognitive disorder secondary to tiger snakebite with loss of consciousness, condition considered not fully treated or stabilised and nil points were awarded;

   ·     Lower limb deficiency, gross lymphoedema of the left leg considered fully diagnosed, fully treated and fully stabilised as there is no significant improvement in this condition expected. A moderate functional impact on activities using the lower limbs was found and 10 points were awarded under Table 3 - Lower Limb Function of the Impairment Tables; and

   ·     Mr McDonald was assessed as having a temporary work capacity of 0 – 7 hours per week due to the symptoms of his condition and a baseline work capacity 15 - 22 hours per week

8. On 9 August 2015 Centrelink wrote to Mr McDonald to inform him that his DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.

9. On 7 January 2016 on internal review, a Centrelink Authorised Review Officer (ARO) affirmed the early JCA report finding that Mr McDonald’s total impairment rating was 10 points under Table 3. They also found that Mr McDonald had a continuing ability to work and had not met the program of support requirements because he had not actively participated in the program of support for 18 out of the 36 months prior to his application being lodged.

10. On 12 January 2016 the Health Professional Advisory Unit (HPAU) conducted a review of Mr McDonald’s condition of lymphoedema of the left leg. The HPAU opined that the condition is chronic and it is unlikely to improve significantly within the next 24 months. The report found Mr McDonald did not meet the criteria for 20 points under Table 3 as he does not use a walking aid or a wheelchair and there is no evidence he is unable to walk from his car into a shop, walk around the shop, or stand from sitting without assistance from another person.

11. On 3 June 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mr McDonald’s DSP claim and determined:

    ·his condition would attract 10 points under Impairment Table 3 (lower limb function) finding he had a moderate impact of activities requiring use of lower limbs. The evidence did not support the conclusion that the Applicant is able to walk around a shopping centre or supermarket without assistance, walk from the car park into a shopping centre or supermarket, stand from a sitting position without assistance and did not require assistance to use public transport. As such 20 points could not be awarded;

    ·an Impairment Rating could not be assigned to the neurocognitive disorder as there was limited medical information in relation to this condition; and

    ·no finding could be made in respect of undertaking a program of support as Mr McDonald  was not found to have a severe impairment.

12. On 1 July 2016 Mr McDonald sought a review of the AAT1 decision by this division of the Tribunal, as he disagrees with the assessment points allocated for his disability.

13. In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 Mr McDonald’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 21 September 2016.

    Relevant Legislation and Issues

14. Section 94(1) of the Act provides that a person is qualified for a DSP if:

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

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

    c)the person has a continuing inability to work as defined by the Act.

15. It is agreed that, at the time of application, Mr McDonald suffered from gross lymphoedema and neurocognitive disorder conditions that caused impairment and he therefore satisfied s 94(1)(a) of the Act.

16. The Impairment Tables state that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)

17. Section 6(4) of the Impairment Tables state that a condition is “permanent” if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

18. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

19. Section 6 (5) of the Impairment Tables states:

    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)     whether there is corroborating evidence of the condition; and

    (b)     what treatment or rehabilitation has occurred in relation to the condition; and

    (c)     whether treatment is continuing or is planned in the next 2 years.

20. Section 6(6) of the Impairment Tables indicates when a condition is fully stabilised:

    For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)       the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

21. For the purposes of subsection 6(7), reasonable treatment is treatment that:

    (a)      is available at a location reasonably accessible to the person; and

    (b)      is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional   capacity; and

    (d)      is regularly undertaken or performed; and

    (e)      has a high success rate; and

    (f)       carries a low risk to the person.

22. The determinative issue in this review is whether, at the time of his claim and 13 weeks thereafter, Mr McDonald suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

23. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, s 5(2)).

24. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

25. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

26. It is necessary, therefore, to consider Mr McDonald’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

27. The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, additional medical reports and medical literature on the condition and treatment of lymphoedema were provided by Mr McDonald.

    DOES MR MCDONALD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

28. Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.

29. The parties accept that Mr McDonald is suffering from gross lymphoedema and neurocognitive disorder conditions. Accordingly, the Tribunal finds that Mr McDonald is suffering from these conditions and meets the requirements of s 94(1)(a) of the Act.

30. As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.

    DOES MR MCDONALD HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

    Gross Lymphoedema

31. Dr Barbara Hoare, general practitioner, in Mr McDonald’s medical report for his DSP claim dated 17 June 2015 stated that Mr McDonald had been her patient since 2008 and he was suffering from gross lymphoedema of the left leg. Dr Hoare described Mr McDonald’s symptoms as: difficulty with mobility, stability and balance due to the heavyweight of the leg; reduced vibration perception of the left ankle; unable to stand on one leg and was prone to falls due to poor balance and the weight of his leg. She described the impact on Mr McDonald’s ability function, stating that prolonged sitting, standing and driving all aggravate leg swelling which is becoming progressively worse. The grossly enlarged leg causes difficulty in walking, bending knees and balance. Additionally, the condition is having a negative impact on his personal relationships, prevents him from engaging in activities to improve physical fitness and causes him difficulties finding clothing that will fit him with the leg deformity.

32. In an additional report  dated 6 June 2017, produced by Dr Hoare  at  these proceedings, the report stated:

    Robert McDonald has asked me, as his treating Doctor at the time he applied for Disability Support, to describe the nature of the treatment and stability of the chronic, severe, refractory Lymphoedema of his left leg.

    
    
    

    He presented to me with a secondary cellulitis in his left leg in early 2008. I treated him in Foster Hospital with IV antibiotics to address both the infection and stabilise the swelling. The option of compression garments was not available as circulation in his left leg could not be confirmed by Ultrasound due to the extent of the tissue oedema. Robert has taken every opportunity to seek medical advice and guidance in regard to treating his Lymphoedema over a number of years. Despite this his leg was continuing to increase in size, becoming debilitating by early 2015, when he had to stop working completely. Fully treated with almost total rest, intensive daily skincare regime and regular private specialist Lymphoedema massage as well as self-massage kept his leg from growing and has been able to stabilise his condition.

    With my written support he applied for Disability Support Pension to enable him to access the resources necessary to maintain the stability of this condition with ongoing treatment, rest and therapeutic exercise. An ultrasound by Dr Milne revealed adequate peripheral circulation to allow compression bandaging which he has used since September 2015.

33. Miss Diane Gibbs, registered nurse and lymphoedema therapist provided an additional report of 13 October 2016 in which she states that Mr McDonald has been a client of the lymphoedema clinic since 2014. In her report she states:

    The condition has caused Robert severe functional impact on activities requiring healthy, undamaged skin to avoid acute infections which he has experienced leading to deterioration of the limb due to the undiagnosed condition. He needs additional time to attend to the management of his skin condition, do the prescribed daily exercise program, self-massage and attend appointments for manual lymphatic drainage and recommendations as documented by the Australia Lymphology Association and attend ongoing appointments for monitoring with appropriate health services.

    When Robert first attended our clinic the lower left leg lymphoedema was causing severe functional impact. The weight and size of the left lower limb were causing incidents of loss of balance when walking short distances and loss of mobility. The skin was fibrosed, areas of swelling had pitting oedema and Robert was experiencing pain from the creases in the foot and heel when walking. Robert was commenced on an intense program of skin and nail care and management of infections and general wellbeing issues. Robert was also monitored for weight loss which he has slowly achieved since February 2016.

    Continuous skin and nail care is required to maintain skin integrity which is a major problem with the high-protein extracellular fluid which build [sic] up and causes swelling and infection. Robert was also seen by the podiatrist for nail and foot care and advice and in 2016 was fitted with special therapeutic shoes to assist with balance and comfort. This is necessary as swelling of the left foot has made it impossible for Robert to wear off shelf shoes without problems. A small blister on foot from the new shoes lead to an infection which required antibiotics, rest and period of no active treatment during recovery and caused increased leg swelling again. A small break in skin can easily be a setback in delay any treatment.

    A daily exercise program was prescribed, manual lymphatic drainage sessions organised/massage and extensive compression stockings fitted. These are the main management strategies for lymphoedema. This program has continued for the past 2 years and also required Robert to attend appointments with GPs and Vascular Specialist as advised.

    Suitable compression garments and stockings were worn every day to assist with maintenance of management of condition as the slow improvement occurred. These needed frequent appointments from going measures and monitoring for fluctuations in swelling in any sign of discomfort of complications. Difficulties with balance and ability to don and doff garments need to be supervised and appropriate systems given if required. These garments are expensive and need to be replaced frequently to maintain their function and to avoid further loss of mobility and relapse of swelling. If the swelling is not controlled as can be an issue in hot weather or if Robert has any injury or break in the skin Robert is at high risk of deteriorating again and prone to infection and cellulitis...

    Robert was unable to walk very far outside his home and had some falls as the leg was causing difficulty with weight and problems with balance. Lymphoedema requires intensive ongoing treatment by the client. Excessive walking, standing, sitting and driving lead to additional swelling and significantly slow this process and make the skin prone to infection.

34. The Respondent contends that Mr McDonald gross lymphoedema of the leg, whilst being fully diagnosed, has not been fully treated or stabilised, as they believe further treatment options are available to Mr McDonald.

35. Mr McDonald advised the Tribunal that he believed his condition was not well understood. At present he is dedicating all his time and effort to managing his health and to ensuring he has the optimal outcome in respect of his left leg. He asserted that he was accessing all available treatment for his lymphoedema at the time of his DSP application. He advised the Tribunal that he firmly believes the most appropriate Impairment Table for his condition is Table 14 - Functions of the Skin (Table 14) and that he has a severe functional impairment as he meets criteria c and d. He advised the Tribunal that his condition limits his movement and comfort, requiring creams and dressings to manage. Further he is unable to wear protective clothing such as pants and shoes.

    Table 14 functions of the skin

    An impairment will have a severe functional impact if:

    20 There is a severe functional impact on activities requiring healthy, undamaged skin.

    (1)        Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

    (a)       the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;

    (b)       the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

    (c)       the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

    (d)       the person has severe 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 can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

    (e)       the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).

1. The Respondent argued that Table 14 was not the appropriate Table under which to consider Mr McDonald’s impairment, and that his work as a journalist would not require him to wear protective clothing.

2. The Tribunal determined Mr McDonald’s condition should be assessed under Table 14 and found it had a moderate functional impact upon his activities and awarded 10 points under this Table.

3. In the HPAU report, dated 12 January 2016, who considered that Mr McDonald met the criteria of a moderate functional impact on activities using lower limbs under Table 3 – Lower Limb Function (Table 3) as he was unable to walk far outside the home though he is able to use a motor vehicle and walk around a shopping centre or supermarket.

4. Mr McDonald advised the Tribunal that he cannot walk around a large shopping centre both because he fatigues easily and he is fearful of falling, as he has done on other occasions. Mr McDonald advised the Tribunal that he drives to the local shop, parks out the front so he has only a short way to walk and only undertakes a small shop so he has little to carry to the car. Further Mr McDonald stated that he is assisted in the local supermarket by staff and locals as he is well-known, as it is a very small town. Mr McDonald had advised the JCA that he struggles with stairs but can walk along a bush track at the back of his home. That he is able to drive but has to stop regularly to complete a range of exercises or lie down and that he was able to undertake his own shopping. The JCA had awarded Mr McDonald 10 points under Table 3 but did not believe his condition was severe.

   Table 3 – lower limb function

   There is a severe functional impact on activities using lower limbs.

   (1)       The person:

   (a)       is unable to do any of the following:

   (i)        walk around a shopping centre or supermarket without assistance;

   (ii)       walk from the carpark into a shopping centre or supermarket without assistance;

   (iii)      stand up from a sitting position without assistance; and

   (b)       requires assistance to use public transport.

   (2)       This impairment rating level includes a person who requires assistance to:

   (a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

   (b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

5. The Respondent reiterated that Mr McDonald’s condition should be awarded nil points as it was not fully treated and stabilised but if the Tribunal found otherwise then the condition should only be assessed as moderate and 10 points awarded.

6. The Tribunal accepts that Mr McDonald’s condition is fully diagnosed, treated and stabilised and that it has a moderate impact on activities using his lower limbs and awarded 10 points for this condition under Table 3.

   Neurocognitive Disorder

7. Dr Hoare, general practitioner, in Mr McDonald’s DSP claim dated 17 June 2015 stated that Mr McDonald had a mild neurocognitive disorder resulting from a tiger snake bite in 2012 resulting in a loss of consciousness. The condition requires formal neuropsychiatric assessment. The symptoms described by Dr Hoare include poor short-term memory, intermittent brain fog, a propensity to lose things often, headaches, and hypertension. Mr McDonald has not had any articles published since the snake bite incidents as he has now lost the capacity to write clearly on demand. The condition affects his ability to concentrate, creates difficulty with cognitive functions and loss of short-term memory; makes him unable to problem solve, causes mental blanks, makes him prone to headaches, and now requires blood medication.

8. The JCA report found that the condition could not be considered fully treated and stabilised as Mr McDonald had not undertaken any neuropsychological testing. That      Mr McDonald advised the JCA assessor that whilst he can still write articles it takes him far longer to complete but he was still able to write things down, contact numerous friendship support groups and undertake voluntary work.

9. Mr McDonald advised the Tribunal that when he first applied for the DSP it was very confusing; in the first instance he believed he was making an application for sickness benefits and did not understand the 45 minute interview would result in his rejection of a DSP claim. He believed that his neurocognitive disorder was not his major disability. Whilst he had ceased work as a journalist because his brain was too affected and memory too damaged to work in the field anymore; his major barrier to employment was his lymphoedema which required all his care and attention and placed great difficulty on his mobility.

10. The Respondent contended that Mr McDonald’s cognitive condition remained undiagnosed and therefore nil points could be awarded and that Mr McDonald had advised the JCA and the Tribunal that he was still able to look after himself.

11. The Tribunal concurs with the Respondent and finds that whilst Mr McDonald has issues with his cognitive functions they are not fully diagnosed, treated and stabilised and therefore nil points can be awarded.

    DOES MR MCDONALD HAVE A CONTINUING INABILITY TO WORK?

12. To qualify for the DSP Mr McDonald must not only satisfy the requirement that he has an impairment with a rating of 20 points or more, he must also demonstrate he has a continuing inability to work. Mr McDonald would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to Mr McDonald’s claim for DSP. His impairment must also be sufficient enough to prevent him from doing any work independently of a program of support. The Tribunal has strictly enforced the program of support requirement today, finding that no power exist to dispense with the operation of s 94(2)(aa) of the Act and it is irrelevant whether an Applicant was aware of the requirement or not.

13. Mr McDonald has not completed a program of support and therefore does not satisfy s 94(3C) of the Act.

    CONCLUSION

14. The Tribunal has awarded 10 points to Mr McDonald under Table 14 as Mr McDonald’s condition requires extensive creams and dressing that limit his movement and comfort. Additionally the Tribunal awarded 10 points under Table 3 as Mr McDonald is unable to walk far outside his home and has mobility issues.

15. Having carefully considered all the evidence before the Tribunal, I find that at the time of his original DSP application of 22 June 2015 Mr McDonald did not meet the required 20 points under one Impairment Table to satisfy s 94(1)(b) of the Act, that he did not have a continuing inability to work, and had not completed a program of support in accordance with s 94(3C) of the Act. Mr McDonald therefore did not qualify for the DSP on 9 August 2015.

    DECISION

16. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of

[sgd].......................................................................

Associate

Dated: 20 November 2017

Date of hearing:	17 October 2017
Applicant:	Self-represented
Advocate for the Respondent:	Joshua Lessing Sparke Helmore