Merson and Secretary, Department of Social Services (Social services second review)
[2021] AATA 90
•28 January 2021
Merson and Secretary, Department of Social Services (Social services second review) [2021] AATA 90 (28 January 2021)
Division:GENERAL DIVISION
File Number:2020/2199
Re:Mr Daryl Merson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:28 January 2021
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – ankylosing spondylitis – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Dragojlovic v Director-General of Social Security, Re [1984] FCA 6
Eckersley and Secretary, Department of Family and Community Services [2001] AATA 798
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48Tlonan and Secretary Department of Social Security [1997] AATA 30
Secondary Materials
Social Security Guide, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
28 January 2021
INTRODUCTION
Mr Merson (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 20 November 2020. Mr Merson was self-represented, and Ms Sophie Roberts of Mills Oakley Lawyers appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Roberts. At the conclusion of the hearing, the Tribunal requested additional information from Mr Merson and allowed the Respondent to comment on the additional material.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Merson was qualified for a DSP at the date of his claim, 26 October 2018 or within the 13 weeks thereafter, that being to 25 January 2019 (the qualifying period). This is in accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The qualification criteria for DSP are found in s 94 of the Act. In order to determine whether Mr Merson qualifies for DSP, the Tribunal must consider whether Mr Merson:
(a)has a physical, intellectual or psychiatric impairment(s);
(b)has a 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 or conditions which attract 20 points or more 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
Mr Merson is 63 years of age and lives with his wife in regional Victoria. Mr Merson completed year 11 education, has a Diploma in remedial massage and a Certificate II in Warehousing. After leaving school he worked in numerous jobs as a bank clerk/teller/ledger examiner, labourer, bus driver, potato picker and as a telecommunications technician for 26 years with Telstra. He last worked as a self-employed masseur in 2012, discontinuing as he could no longer perform massage as it was causing him too much pain and swelling in his wrists.
On 1 February 2017, Centrelink conducted a face to face Job Capacity Assessment (JCA) on Mr Merson, determining that his condition of ankylosing spondylitis was fully diagnosed, but not fully treated and stabilised as there was a specialist recommendation for additional treatment. The JCA recommended a work capacity consistent with eight to 14 hours and, within two years with intervention, 15 to 22 hours per week.
On 26 October 2018, Mr Merson lodged an application for DSP, citing his medical condition as ankylosing spondylitis.
On 10 December 2108, Centrelink conducted a DSP eligibility assessment on Mr Merson, determining that he was manifestly medically ineligible for the DSP as his conditions were not fully diagnosed, treated or stabilised. The report noted:
For noted conditions to be supported as fully diagnosed, treated and stabilised the claimant needs to provided supporting medical information that they have undertaken or completed reasonable treatment for the conditions. Reasonable treatment for these conditions includes support of a Surgeon for support opinion and management of Severe Ankylosing Spondylitis HLAB27. Affective allied health interventions for all conditions including physiotherapy, and participation in pain management program not just attendance at intake. Such treatment would be likely to result in significant functional improvement and enable the claimant to undertake work in the next 2 years.[1]
[1] T 36, T documents, p 216.
On 12 December 2018, Centrelink rejected Mr Merson’s DSP application as he had been assessed as not having an impairment rating of 20 points or more.
On 20 January 2020, a DSP medical eligibility assessment recommendation was conducted on Mr Merson as he had provided additional information. It recommended Mr Merson’s DSP claim be rejected as his condition of ankylosing spondylitis had not been optimally treated or stable and therefore no impairment rating could be assigned.
On 30 January 2020, on internal review, a departmental authorised review officer (ARO) affirmed the Centrelink finding of 12 December 2018. The ARO determined that as Mr Merson did not have an impairment rating of 20 points he did not qualify for the DSP, stating the following:
Ankylosing Spondylitis
The medical evidence you provided indicates that you have Ankylosing Spondylitis (AS) and this was diagnosed in April 2014. Treatment in the past has included rheumatologist review, dietary management, daily exercise and movement activities and acupuncture. You reported to the Job Capacity Assessor the acupuncture and physiotherapy improve your symptoms however you cannot afford the regular treatments. You have trialled meloxicam previously and your symptoms improved, however you ceased medication due to development of reflux, diarrhoea and toe nail disfiguration.
The rheumatologists have recommended the biologic agents treatment (adalimumab) but they have also noted you are reluctant to consider this and that they have reassured you the main side effects would include an overall slight increased risk of infection, injection site reactions and reactivation of latent infection and small increased risk of skin cancer. On balance these side effects are usually very uncommon and manageable whereas the benefits of biological therapy in AS tend to be very significant.
…
Based on all available medical and corroborating evidence I can consider the condition is fully diagnosed. However I cannot consider the condition is fully treated and stabilised as there is treatment that has been recommended by a rheumatologist which has not been undertaken. Whilst I understand your personal reservations in having the treatment done, there is no additional medical evidence from a specialist that confirms they no longer recommend this as a treatment for you. Therefore this condition cannot be given a rating under the Impairment Tables.
Mental Health Conditions
The medical evidence you provided indicates that you have depression and anxiety. The Impairment Tables require that for a mental health condition to be accepted as fully diagnosed, the diagnosis must be made by a psychiatrist or by another medical practitioner with evidence from a clinical psychologist. The available evidence does not show your depression and anxiety have been diagnosed by a psychiatrist or by another medical practitioner with evidence from a clinical psychologist. Therefore this condition cannot be given a rating under the Impairment Tables.[2]
[2] T59, T documents, pp 255-256.
On 1 April 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Merson’s DSP claim. The AAT Tier 1 concluded that Mr Merson’s medical conditions attracted an impairment rating of 10 points. The AAT Tier 1 determined that:
Mr Merson has been diagnosed with ankylosing spondylitis. He has rejected treatment with biologic agents due to fear of side effects. His main problem over the past two years has been fatigue. He manages this condition with lifestyle changes and has had no swelling or joint pain for two years. As noted above, to apply the Impairment Tables the condition must be considered 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. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised and likely to last for more than two years. The tribunal considers that this condition is fully diagnosed. As this condition has been present for several years and Mr Merson is not prepared to undertake any further treatment, the tribunal considers this condition to be fully treated and stabilised, and unlikely to change over the next two years. The tribunal did not consider the frozen shoulder and stiff neck as these conditions were not mentioned in the medical information available to the tribunal. The tribunal concludes there is a moderate functional impact on activities requiring physical exertion or stamina, as Mr Merson experiences fatigue performing physically active tasks, and cannot perform these activities at a normal pace.
…
As Mr Merson has not been treated by a psychiatrist or clinical psychologist, the tribunal concludes this condition cannot be considered to be fully treated and stabilised. Therefore an impairment rating is not able to be assigned for this condition.[3]
[3] T2, T documents, pp 8-9.
On 12 April 2020, Mr Merson sought a review of the AAT Tier 1 decision by this division of the Tribunal (Tier 2), as he disagreed with the decision, stating:
I would like to thank you for the assessment which appears to be very representative of my status considering the limitations placed on you by government red tape. I would also like to clarify a few points and then move on to asking for a review of my medical status based on new evidence which has become known to me since this last application was submitted.
At the beginning of point 13 you have stated that “he had some back issues which settled.” And while this is entirely correct the statement seems to trivialise all the pain and suffering l went through for about ten years with multiple back problems.
Half way through point 13 you state “Pain was not a feature of his symptoms” I believe this resulted from my comment that I was not in pain during my interview while l was sitting in a comfortable chair. Over the last 27 years l have suffered from a vast number of various and fluctuating pains relating to my condition and this continues to be the case. Attempting to explain all the pains and their degree of severity would fill many pages so l try to simplify the descriptions l give and this can give an unrepresentative view at times.
Near the bottom of point 13 you mention that l can maintain work activities for about ninety minutes a day on average and while this is true sometimes, l often need breaks to complete this amount of work.
As a result of Centrelink not having a category for the symptoms relating to Ankylosing Spondylitis I appreciate that you have attempted to put me in a category with a rating of ten points in your point 14. However it has been pointed out to me recently by a Centrelink worker that one of the side effects of the Ankylosing Spondylitis is that my back has stiffened up and this qualifies me for a rating of 20 points.
In point 15 which relates to the depression. I was assessed with having Ankylosing Spondylitis by a psychiatrist in 2014 and it only required one visit for him to accept that l was unhappy due to the effects of the Ankylosing Spondylitis. This was and remains the case to this time and the treatment recommended by the psychiatrist was to find the cause (Ankylosing Spondylitis) and treat the Ankylosing Spondylitis, which has been done and stabilised.
Primarily relating to the condition of my back from the Ankylosing Spondylitis I would like to request another review of my condition. I assume at this point that l will have to have several medical visits to get the necessary medical statements to confirm my condition. I am also assuming that because these are not urgent visits that l will have to wait until the current Covid19 crisis has passed before l can obtain this paperwork.[4]
[4] T1, T documents, p3.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for 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) one of the following applies:
(i) the person has a continuing inability to work;
…
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states 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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Paragraph 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.
Paragraph 6(6) of the Impairment Tables states:
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.
For the purposes of paragraph 6(7) of the Impairment Tables, 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.
The issue to be determined in this review is whether, during the qualifying period, Mr Merson suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[5]
[5] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 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.
Paragraph 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 from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Determination) sets out a number of exemptions to the general requirement that a person must participate in a program of support for at least 18 months in cases where a person does not have a severe impairment.
The Determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
The term 'work' is defined in subsection 94(5) of the Act, as 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
CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Mr Merson.
DOES MR MERSON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance a person must suffer from an impairment.
The Respondent accepts that Mr Merson is suffering from ankylosing spondylitis and depression/anxiety/stress. The Tribunal finds that Mr Merson was living with impairments during the qualifying period and therefore meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR MERSON HAVE MEDICAL CONDITIONS THAT RESULT IN IMPAIRMENTS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Ankylosing spondylitis
On 13 May 1991, Dr N P Siemensma, consultant physician, provided a report on Mr Merson’s reported reaction to a local anaesthetic injection in which he opined:
He gives a history of having atypical reactions after anaesthetic exposure, particularly local anaesthetic injections.
Local anaesthetic reactions are not IgE mediated and hence a variety of responses have been noted all of which we believe are due to histamine release from mast cells.
…
I am happy from the history that an atypical activation of the mast cell may well be responsible for his symptoms and I have suggested that it will do him no harm to take 200mg of Prednisolone orally in divided doses over the 24 hours prior to receiving a local anaesthetic.
No further treatment will be necessary. This will be used as a therapeutic trial initially to see if in fact my hypothesis is correct, since the above regime prevents an atypical mast cell activation reaction in 99.9% of these cases.[6]
[6] T4, T documents, p 103.
On 12 April 2014 Dr Joanna Hall, Rheumatologist, provided the following report, in which she opined:
He reports low back pain and bilateral hip pain for at least 20 years'. The pain is inflammatory in nature and has progressed to involve his thoracic and cervical spine as well and his right shoulder. The pain is worse with rest and improves with activity. He wakes up in the second half of the night with pain and he gets intermittent buttock pain. This is all consistent with inflammatory back pain. In addition he has a past history of uveitis. He has never had psoriasis or inflammatory bowel disease. He is HLAB27 positive, has elevated inflammatory markers and has clear cut sacroiliitis which is grade 3 bilaterally on his x-rays. He does not have any bridging ankylosis visible but he does have squaring of the vertebrae on his thoracic and lumbar spine imaging.
On examination today he has major limitation of movement of his lumbar spine with left and right lateral flexion limited to 3cm bilaterally. His forward flexion reveals a modified schobers test of 5cm, he has normal chest expansion and no evidence of pulmonary fibrosis or aortic regurgitation. He has a major limitation of his cervical spine movements with an occipital to wall distance of 5cm. All of this is consistent with ankylosing spondylitis.
My plan is as follows;
1. Non-steroidal anti-inflammatories. He should start with a strong dose of Naprosyn and I have prescribed him 1000mg slow release which he will take once daily and can take every day.
2. I have recommended an exercise program. He is reluctant to seek physiotherapy but has been undertaking a stretching program of his own.
3. He may do very well with an anti-TNF biologic agent however he is quite reluctant to consider this at this stage. He has a history of a sensitivity to preservatives and is concerned about injections and indeed if he does need to have an anti-TNF down the track an intravenous one may be a good option where he can be monitored in hospital.[7]
[7] T9 T documents, p 124.
On 12 August 2014 Dr Hall provided the following report, in which she stated:
I had the pleasure of reviewing this 57 year old man with ankylosing spondylitis and ongoing inflammation. He has fluctuating pain and is doing well with Meloxicam 15mg daily. I note his Vitamin Dis low and have suggested he increase his replacement to two tablets daily. I have suggested that he undertake physiotherapy, although he is reluctant he should avoid manipulation of the neck and continue with the Meloxicam. He does not want a biologic agent because of his previous allergic reactions to injections so he will continue with his current management plan and a Rheumatologist at this clinic will see him again here in 6 months' time.
On 20 March 2015 Dr Kim Le Marshall, Consultant Rheumatologist, provided the following report, in which she opined:
Diagnoses:
1. Ankylosing spondylitis with grade 3 bilateral changes on plain x-ray, raised inflammatory markers, HLAB27 positive, exercising regimen, tried anti-inflammatories
2. Low grade diarrhoea, possibly related to inflammatory bowel disease
3. Previous uveitis
4. Naturopathic outlook on treatment of his ankylosing spondylitis
It was a pleasure to review Daryl today. He seems to be doing reasonably well with his exercise regimen. I am concerned that he has persisting inflammation in the blood with significant daytime fatigue and I have instructed Daryl that he is at risk of spinal movement restriction over time in the absence of biological therapy. Daryl is very concerned about the use of biological agents and l have again tried to reassure him today that the main side effects would include an overall slight increased risk of infection, injection site reaction, reactivation off latent infection and a small increased risk of skin cancer. On balance, these side effects are usually very uncommon and manageable whereas the benefits of biological therapy in ankylosing spondylitis tend to be very significant with reduction of daytime fatigue, improvement in inflammatory back pain and a significant improvement in productivity.
I have directed Daryl to have a read around the Arthritis Australia website particularly around the medication Adalimumab which I think might he beneficial for him. Daryl will consider this. He is going to pursue exclusion diets first. As such, I will review Daryl in six months' time with repeat blood tests to discuss further whether he wants to trial a biological therapy.[8]
[8] T14, T documents, p 133.
On 11 December 2015 Professor Julie Mulin Wong, traditional Chinese Medical Practitioner, provided a report into Mr Merson’s treatment and condition in which she opined:
During examination finding, his face is slight pale; his tongue was pale with thin whit [sic] coating. His pulse is wire and fine and weak in Chi area. His neck move to forward flexion, extension, both side-ways tilt movements were normal, but both side rotations movements were limit and difficulty, special the right side rotation. His low back around L2 area was tender and pain while palpated.
TCM diagnose for his condition was chronic fatigue, back pain and neck stiffness disorder with pattern of Qi deficiency - stagnation and blood stasis.
TCM treatment principle for his condition is to supplement and move qi and blood, and relax the sinews, by providing acupuncture treatment, Tuina massage on his low back, and prescribing Chinese herbal medicine for his general condition. After the first treatment initially his back pain was reduced and he had a related feeling.
He come back for two following up visiting on the dates of 26/11/2015 and 7/12/2015, and his condition was similar as above, and then acupuncture and Tuina massage treatment were provided for his neck stiffness condition on those two sections, as well as Chinese herbal medicine. After the treatment initially his neck rotation on both side move were improve with less limit [sic].
He total had three treatment sections in this clinic; and condition like his usually needs more treatments for further improvement.[9]
[9] T15, T documents, p 136.
On 15 December 2015 Dr Arvind Sharma, Chiropractor, provided the following report, stating:
Mr Daryl Merson presents to the Gippsland Chiropractic Clinic with significant stiffness throughout the spine. Daryl has reduced range of motion in the neck and thoracic spine and associated hypertonic thoracic and lumbar paraspinal muscles.
Mr Daryl has been diagnosed with Ankylosing Spondylitis which causes these above mentioned symptoms and clinical signs. It is a condition that can continue to get progressively worse if it is not managed appropriately.
Our treatment programme through Chiropractic care is to continue to reduce the stiffness in the spinal joints, to improve the tone of the surrounding muscles and to improve Daryl's posture through Chiropractic adjustments of the spine and our Flexion Distraction Technique.
A condition such Ankylosing Spondylitis requires ongoing care to manage and improve the above mentioned symptoms.[10]
[10] T16, T documents, p 137.
On 19 November 2016 Dr Le Marshall provided the following report, in which she opined:
Daryl returned for review today. As you know, he is intolerant of anti-inflammatory tablets. He has tried physiotherapy with some benefit but he still has persisting inflammatory back pain and peripheral joint pain. He also has persisting loose bowel motions, which is likely related to his ankylosing spondylitis also (perhaps indicative of colitis). He has developed onycholysis at some of the toenails. We have again discussed the risks and benefits of biological treatment for his ankylosing spondylitis. It would likely have a very beneficial effect but Daryl is worried about the side effects including infection. l am happy to review at any point when Daryl is prepared to undergo the biological therapies. In the meantime, he has severe active ankylosing spondylitis.[11]
[11] T21, T documents, p 147.
On 17 September 2019 Dr Fiona Zafiris, Mr Merson’s general practitioner since July 2019, provided the following report in support of Mr Merson’s claim for DSP. In it she opines:
I am writing to you to discuss Daryl's case. He tells me he has had a long running case with you in regards to his ankylosing spondylitis. He has seen two rheumatologists in the past and he is unable to be treated with the biological agents that they have suggested due to his known allergies and the adverse outcomes of these treatments (which are quite well documented and supported by evidence). This man is unable to work as he does not have the physical capability for employment due to the permanent nature of the AS. He is using treatments such as osteopathy, massage and diet, however if he does any physical activity or repetitive tasks he is in severe pain and unable to do anything. His current regime manages his day to day symptoms but if he is required to work this will be unsustainable. He has had quite a lot of anxiety depression and low mood related to the condition and the permanent nature of this diagnosis. I believe this man needs to be on a disability pension and would like to discuss how we can facilitate this.[12]
[12] T49, T documents, p 231.
On 31 October 2019 Dr Anthony Boers, Consultant Rheumatologist, provided the following report to Mr Merson’s treating General Practitioner in which he advises:
Sorry for the confusion there really was not much point Daryl seeing me if he was not interested in Biologic therapies and if he has seen previous rheumatologists it was certainly my view that they could provide the Centrelink reports. I note that he has seen two previous rheumatologists.
Certainly I confirm he has ankylosing spondylitis it is not curable he is reluctant for Biologic treatments for reasons which he has outlined including sepsis, opportunistic infection and other toxicities.[13]
[13] T52, T documents, p 242.
Dr Benjamin Karsz, Mr Merson’s General Practitioner since August 2018, has provided numerous medical certificates for Mr Merson which all diagnose ankylosing spondylitis as a permanent condition with date of onset as April 2014. Dr Karsz lists symptoms as chronic pain, peripheral swelling, weight loss, ongoing self-limited exacerbation with physical activity, and describes treatment as “ongoing discussion regarding treatment. Diet/lifestyle changes… Avoidance of triggers. Recommended hydrotherapy and ongoing massage. Range of motion exercises with osteopath - has begun sessions with osteopath under a GP management plan and Team Care Arrangement”.[14]
[14] T20,
Since July 2019 Dr Zafris has provided Mr Merson with numerous medical certificates which all diagnose ankylosing spondylitis as a permanent condition with date of onset as April 2014. Dr Zafris lists symptoms as pain, inflammation, lethargy and significant mobility impairment.
On 2 October 2018, Mr Merson wrote to Centrelink outlining his claim for DSP including his symptoms, ability to perform work and his rejection of undertaking reasonable treatment. In it he states:
I am writing once again to apply for a disability rating since it has been over 6.5 years now since my hands swelled up in March 2012 and I have found that I cannot work at any repetitive physical activity for multiple hours per day and this includes such things as writing and using a computer mouse.
It is difficult to say when the condition began because the first symptom was food intolerances which I have had from birth.
Second was peeling and cracked skin on my feet which began when I was 21. However I found out by accident a couple of years ago that with a zero consumption of cane sugar I was able to bring that under control.
Third was a series of back problems I experienced from around 35 which multiple back specialists were unable to diagnose. I was able to bring this under control with multiple physical exercises and anew $5,000 Wenetex mattress.
Fourth was the occurrence of bouts of iritis in my early forties when no eye specialists were able to diagnose and it led to me having to take months off work on sick leave.
Fifth was a feeling of tiredness in my early fifties which I assumed was just old age and so I took a redundancy from Telstra to take up work as a remedial masseur on a part time basis.
Over about the next 15 months I built my business up to a point where it was paying its way and it was at this point my hands swelled up for what seemed no apparent reason as I wasn't working more than an average of 3 hours a day.
I tried to carry on for several months doing just 2-3 hours a week but I just couldn't handle the pain and had to give it away. I then tried to start up a lawn mowing business but after a few months I found the same problem occurring and gave that away as well.
At the start of 2014 I had given up trying to find work and went to Centrelink for help paying the bills etc. However Centrelink was not satisfied with Dr Perry's assessment of fibromyalgia and so I was asked to see a psychiatrist and a rheumatologist.
In the past I had been seen by multiple back specialists and eye specialists who had not been able to diagnose my condition so I was sceptical of their abilities, but I do look basically healthy so I accepted that it was the obvious thing to do.
After an hour with the psychiatrist he leaned back in his chair and said, "there is no need for you to come and see me again, you are unhappy because you are in pain which needs diagnosing and that is what you need to do"
I then went to the rheumatologist Joanna Hall who diagnosed my condition straight away and said it was even obvious from the way I was sitting in the waiting room, which surprised me because I thought I was sitting normally.
The conclusive factor of my condition was the raised inflammatory markers (amount of impurities) in my blood and when I was given the fact sheet of the condition Ankylosing Spondylitis (AS) I realized it matched my symptoms exactly.
Initially she put me on. Naproxen (Proxen 1000) which within a few days I had to stop because it caused swelling and pain in my left hip which ended up lasting 12 months approx.
About 5 months later in July 2014 I was given a course of Meloxicam which I also had to give up after a few days because it caused my left knee to swell up like a football. This lasted approx. 2.5 years and it is only earlier this year in about May that the swelling finally subsided. Even though the atrophy has now gone from my leg I still require the use of hand rails to go up and down steep steps.
On the two occasions I was given the drugs Naproxen and Meloxicam I developed oncolyosis (rotting toe nails) and the residual effects are still obvious today with distorted and chalky toe nails.
During this time I have also had multiple side effects of the AS such as bouts of iritis about once a year which can be verified with Dr Hashini Seneviratne
I have also endured a frozen right shoulder from about January 2015 to December 2017. This has been followed by a frozen left shoulder from December 2017 to current day (October 2018)
I also developed Browns syndrome (inability of eye muscles.to raise eyelid) which the eye specialists said required an operation or steroid injections, but an acupuncturist in Springvale by the name of Dr Julie Wong was able to fix me in one visit.
I have the additional problem of pingueculum (dry eyes) and crossed vision which has made it difficult for me to do a lot of reading or to spend much time on a computer. For example I did a lot of reading when I was younger, but haven't read a book for over 25 years now.
For most of this time I have suffered from restricted neck movement and have to avoid intersections as much as possible during my limited outings in the car.
Last year when I persisted for three months to do a term of a university course and my hand swelled so much I could not start the second term, it took 5 months for the swelling to go down before I could do normal things again.
I have also been assessed by the four person team at the pain clinic in Traralgon (Physiotherapist - Judy, Pain Consultant- Dr Nathan, Occupational Therapist- Carolyn, and Psychologist- Darren I from July 2018 to September 2018.
I hope from the above you can see my condition is complex and took health professionals years to diagnose and is not something someone can take a quick look at me and be aware of.
Drugs I have been given so far have had devastating effects on my health and even though Dr Kim Le Marshall said I would be back because I couldn't stand the pain, I have found things like, massage, chiropractic, physiotherapy, acupuncture, osteopathy and hydrotherapy to give me relief without the nasty side effects.
Dr Kim Le Marshall in his last letter you have on file suggested I could try a biologic agent, which sounded like a positive ongoing treatment, but he didn't mention the side effect it had of destroying your internal organs within about ten years.
You can check back with him or any other medical source you have and you will find I am correct.
Every night I wake up around about 2 or 3 o'clock in pain as a result of the build up of toxins and I have to move around until they are dispersed enough for me to return to sleep. This in turn means I have to sleep in most mornings to catch up on sleep or I get run down and very sick.
The current path I am taking of staying home with minimal pressures, staying on a strict diet and getting weekly massages etc seems to have stabilised the condition to the point where I can ignore the pain most of the time and keep the swelling down.
Life expectancy for me will be reduced in the long term as a result of the ankylosing spondylitis in the same way that smoking, drinking, being overweight etc reduces people's lives. I cannot participate in any sport or physical exercise other than stretching exercises that I perform while having a hot shower. I cannot warm up naturally but have found the shower loosens things up enough for me to stretch.
My condition with all its side effects means that even if I can do a particular job one day, then next week or month it may be that the new complaint prevents me undertaking that activity. It's a constant challenge for me finding new and different ways to overcome the failure of my body parts to work.
Each day you head off to work with the expectation of coming home injury free and all I am asking is that you grant me the same consideration. If they find a cure things could change rapidly, however I have left requests with dozens of medical experts to contact me if they hear of a cure and have heard nothing so far.[15]
[15] T30, T documents, p 167-169.
Mr Merson advised the Tribunal that basically his primary problem was that when he tries to do anything, he gets swollen hands, legs and other problems. He stated that whilst Centrelink seems to think his primary problem is with his neck which is noticeable and makes it difficult to drive, he feels that his joint swelling is the primary problem preventing him from undertaking any activity. Mr Merson argued that as his condition fluctuates it did not appear to be addressed under the impairment tables and he cannot seem to get Centrelink to understand the severity of his condition.
The Respondent accepts that Mr Merson suffers from ankylosing spondylitis as diagnosed by specialist rheumatologist Dr Hall in 2014.
However, the Respondent contended, contrary to the finding of the AAT Tier 1, that the condition was not fully treated or stabilised during the qualification period as Mr Merson had not undertaken reasonable treatment for the condition and there was evidence that significant functional improvement was likely to result with further treatment. The Respondent argued Mr Merson had been recommended to undergo biological therapies by two rheumatologists, namely Adalimumab, which he did not undertake. He had also declined to proceed with a recommended Pain Management Program.
Further, the Respondent contended there was no medical or other compelling reason provided by Mr Merson as to why he had not undertaken the reasonable treatment as recommended by various specialists.
The Respondent contended Mr Merson’s objections to undertaking biological therapies was contrary to the treatment recommendations of his medical practitioners. The Respondent argued that Dr Hall had stated in her report dated 12 April 2014 that Mr Merson "may do very well with an anti-TNF biological agent", and suggested "an intravenous one may be a good option where he can be monitored in hospital” to address the Applicant's concerns about injections.[16]
[16] T9, T documents, p 124.
Further, the Respondent contended that Dr Le Marshall discussed the risk of Mr Merson not proceeding with biological treatment being a "risk of spinal movement restriction over time", and that benefits were "very significant” in reduction of daytime fatigue, improvement in inflammatory back pain and improvement in productivity when compared to the "very uncommon and manageable" side effects.[17]
[17] T14, T documents, p 133.
The Respondent argued in these circumstances, biological therapies were reasonable treatments that were likely to significantly improve Mr Merson’s condition and there was no medical or other compelling reason for him not to undertake these treatments.
Mr Merson advised the Tribunal on numerous occasions and with considerable passion that he had undertaken dozens of treatments from a variety of experts, and that he had a bad reaction to medication which had left him in pain for three years, for which numerous doctors had taken no responsibility or provided any help. It had taken him three years of self-treatment through diet, massage and leading a very quiet, sedentary life to get the swelling down in his body. The doctors had simply told him to go home and rest, yet Centrelink insisted he applied for jobs, which he insists is pointless and indeed dangerous.
Mr Merson advised the Tribunal he had taken the medication prescribed for the condition, but he had experienced severe side effects in just a few days, including reflux, his left knee swelled, and his toenails went rotten. So, he discontinued taking any medication. In a letter to Centrelink dated 8 February 2020 Mr Merson advised:
After many years of suffering the effects of Ankylosing Spondylitis I was finally diagnosed on the 12.4.14 by the rheumatologist Joanna Hall as having the condition and was advised to begin taking NAPROXEN.
For a couple of days I felt better and then I developed a bilious stomach and ceased taking the medication. Sadly by then I had developed extreme arthritic pain in the top of my left hip which lasted for about twelve months and prevented me from laying on either of my sides for about twelve months. It also caused the onset of onycholysis in the middle toe on my right foot.
On a follow up visit to Joanna Hall on the 12.8.14 l was prescribed with MELOXICAM which also started out making me feel better for a couple of days before the bilious stomach side effects caused me to stop taking the medication. Once again it was too late to stop a side effect of my left knee from swelling up like a football which lasted about two and a half years before the swelling went down and has left me with permanent weakness in my left knee. On three occasions in the last three years my left knee has unexpectedly given way on me and sent me face first into the ground. At this point in time my toe nail on my right foot also developed onycholysis.
In the early half of 2017 I was given a course of CATS CLAW by the kinesiologist Joe Krawec and this caused my back to stiffen up badly. I went from being able to touch my toes to only being able to reach a point half way between my knee and ankle.
Most treatments given to me had no effect whatsoever and all remaining treatments by rheumatologists have extremely nasty side effects.
The drugs they use are experimental even though the rheumatologists are happy to tell you otherwise. They say the drugs are proven and yet when you are prescribed with the drugs the doctors tell you to try them and see what happens. Everyone is different and so the results of these drugs on people can vary greatly.
When their drugs had negative side effects and l was left crippled and in agonizing pain 24/7 for about three years I was told by the doctors that it was temporary and there was nothing they could do except advise me to go home and rest until it got better.
As a result of all my negative experiences with doctors and their drugs I have no wish to further endanger my life.
In addition I have stabilized my condition with a strict diet, a daily stretching regime and avoidance of any physical or emotional stress which has allowed almost all the swelling to go down and as a result while I am at rest I am pain free.
I do not wish to jeopardize this balance l have achieved after many years and would like this to be acknowledged.
Mr Merson agreed he was not prepared to take the biological agents even though he accepted they may improve his condition. Fundamentally he argued he would not undertake the treatment recommended as he:
(a)Does not like injections, since he was a child he has blacked out and vomited when he has had any injection, he simply will not take any medication via an injection.
(b)He does not believe the treatment is a cure.
(c)The risk of side effects is too great.
(d)Last time he took medication recommend by a doctor he was left in screaming pain for three years.
(e)His own research has led him to understand the risk of the treatment which leads to organ failure and cancer.
(f)The long term effects of the treatment are still unknown, one of the specialists had advised him that the treatment does lead to organ failure but that they had hoped in the next 10 years a cure will be found which will mitigate against this concern, but the doctor was not prepared to commit this to writing.
(g)Doctors have been proven wrong and they were influenced by the money.
The Respondent contended Mr Merson’s objection to undertaking biological agents because of his history of sensitivities to preservatives in the injections and his previous allergic reactions to injections were uncorroborated. The Respondent argued that Mr Merson’s reliance on upon Dr Siemensma’s report of 13 May 1991 in support of this contention was an incorrect interpretation of the report, as Dr Siemensma stated Mr Merson had reported having "atypical reactions after anaesthetic exposure", and for which he had recommended Mr Merson take a medication orally 24 hours before receiving local anaesthetic.[18] The Respondent argued the report from Dr Siemensma did not state that Mr Merson was allergic to preservatives in all injections but simply that he was assessed with respect to his reactions to local anaesthetic injections.
[18] T4, T documents, p 103.
The Respondent argued Mr Merson’s further objection to undertaking biological therapy because of the side effects which he stated included "destroying your internal organs within about ten years" and an "increased chance of infection, cancer and organ failure within about 10 years"; on the basis of "his own thorough research" of the negative side effects and that he believed the rheumatologists who have recommended the treatment had an "ulterior motive", namely that they would receive kickbacks from the pharmaceutical companies when the applicants commenced the treatment, were also not supported by current research.
The Respondent referred the Tribunal to the information on Arthritis Australia's website on the benefits and side effects of Adalimumab, noting relevantly that the drug works by blocking cytokines which are substances found in excess amounts in the blood and joints of people with conditions such as ankylosing spondylitis, and that it “works relatively quickly”. Further, a study in The Lancet Gastroenterology & Hepatology published on 10 December 2019 concluded that using a TNF inhibitor such as Adalimumab (Humira) did not increase the risk of developing a new cancer, nor does it increase the risk of cancer reoccurring in cancer survivors.
Mr Merson advised the Tribunal he had sent numerous materials, such as research papers and outlines of ABC documentaries to Centrelink which documented the known side effects of biological therapy. The Tribunal allowed Mr Merson to submit this material following the hearing and it is outlined below:
I have recently watched a documentary on the tv titled “NBA 2019-2020: MAGIC V BUCKS” where many aspects of Chronic Fatigue Syndrome/Fibromyalgia are discussed with the following points being made…
There are generally biomarkers (naturally occurring molecules, genes, or characteristics by which a particular pathological or physiological process, disease, etc can be identified) and in my case this has been identified as the blood type HLA_B27.
There are also receptors called threat receptors which can be used as biomarkers and these can be activated by viruses/bacteria when exposed to a number of stimuli.
…
spondylitis (AS) is a chronic autoimmune disease that primarily affects the spinal joints, but large joints, such as the hips and shoulders, can also be involved.
Inflammation, resulting from the immune system activity, causes joint fusing in sections of the spine, which often leads to pain, swelling, and stiffness.
This can limit mobility, making it difficult to complete everyday tasks.
There’s no cure for this disease, but different treatments can slow the progression and help you live an active life. Your healthcare provider will develop a treatment plan for you after your diagnosis.
Because symptoms of AS can range from mild to severe, some people can manage their symptoms with nonsteroidal anti-inflammatory drugs (NSAIDs), such as ibuprofen (Motrin, Advil) and naproxen sodium (Aleve).
If your symptoms don’t respond to those drugs, prescription medications are the next line of defence.
Prescription drugs used for AS include disease-modifying anti-rheumatic drugs (DMARDs) to decrease the inflammation immune activity causes.
Although they’re unable to target the exact cause of it, NSAIDs and DMARDs are both designed to stop inflammation.
Sometimes the pain and stiffness AS brings about doesn’t respond to these prescription medications. To help you manage symptoms, your doctor may recommend a different type of therapy called biologics.
What are biologics for AS?
Biologics are genetically engineered proteins created from living organisms that mimic normal biological functions.
Side effects of biologics for AS
There’s the risk of side effects or allergic reactions with many types of medications, and biologics are no exception.
Side effects of biologic therapy can include:
pain, redness, rash, or bruising at the injection site
headache
hives or rash
stomach pain
back pain
nausea
cough or sore throat
fever or chills
difficulty breathing
low blood pressure
These side effects are usually mild and will typically subside and eventually go away.
However, you should call your doctor if you have symptoms such as hives, swelling, or difficulty breathing. These could be signs of an allergic reaction.
Because biologics suppress your immune system, they can increase your risk for infections and cancer.
Myth or Fact? TNF Blocker Side Effects Are Very Dangerous
Not always. But you should educate yourself.
As with most medicines, TNF blockers have some serious side effects. However, most of the very serious side effects are also very rare. An increased frequency of infections, including tuberculosis (TB) or fungal infections, may occur. However, prior to beginning treatment with TNF blockers, a TB test is given to rule out an active infection.
Also, a very rare side effect is the increased frequency of certain cancers, for example:
leukemia (blood cancer)
lymphoma (lymphatic system cancer)
non-melanoma skin cancers (like basal cell and squamous cell).
Infliximab has also been linked with a severe allergic reaction (facial swelling, difficult breathing, low blood pressure).
The Respondent noted that in Dr Islam’s letter of 25 July 2017, she confirms Mr Merson "had 2 lots of biological therapies but had S/E and does not want to get it” and the reference in her report of Mr Merson’s side effects to biological therapies were more likely his reactions to the anti-inflammatory medications, which are different to Adalimumab.[19] Mr Merson advised the Tribunal he had not undertaken any biological therapies and could not account for Dr Islam’s comments.
[19] T24, T documents, p 156.
The Respondent referred the Tribunal to the matter Dragojlovic v Director-General of Social Security [1984] FCA 6 (Dragojlovic), where Smithers J held:
A disability which can be relieved by treatment which is reasonably available is not permanent. But where the claimant is a person who actually cannot, for fear, or religious beliefs, for example, or for some other reason of a genuinely compulsive nature, accept that treatment, the question is whether his disability is one which can, in fact, be relieved.
To treat an incapacity as permanent, simply because a claimant will not take steps to be cured would be unacceptable from any point of view. A person with diabetes who refused to take insulin could hardly be thought, without more, to be permanently incapacitated. But if further facts be added such as the person refused insulin on genuine and compelling religious grounds, or because of a baseless but genuine fear of death or injury therefrom, then the situation is different.
The Respondent argued that Dragojlovic applied a subjective test to consideration of whether or not there was a "medical or other compelling reason" to refuse treatment. However, the Respondent contended, in the later decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 (Jansen), the Full Court of the Australian Federal Court stated at [39]:
...the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each.
The Respondent noted that while Jansen was concerned with the interpretation of the provisions in the Introduction to the Impairment Tables (previously contained in Schedule 1B of the Act), the Guidelines to the current Impairment Tables make it even clearer that in assessing whether there is a medical or other compelling reason for a person to refuse to undergo recommended medical treatment, both an objective and subjective element must be considered. The Guidelines are found in the Social Security Guide (the Guide) and at 3.6.3.05 state:
The person's views (the subjective test) and all available information on treatment options, risks etc. (the objective test) must be considered by the assessor in such situations.
If a person has not had reasonable treatment due to factors that are not of a compelling nature (e.g. lack of personal motivation that is not due to their medical condition), then their condition would not be considered permanent for DSP purposes, as it is not fully treated and stabilised.
Further, the Respondent contended that a person's own views as to the efficacy (or otherwise) of treatment is not a compelling reason to refuse treatment that has been recommended by treating practitioners. Noting that in the matter of Tlonan and Secretary Department of Social Security [1997] AATA 30 (Tlonan), the applicant had ceased taking medication recommended by her treating doctors on the basis that "she felt" it did not make her feel better. Deputy President Forgie held that where the applicant had not taken medication as prescribed, and refused to take prescribed medication, and "there is nothing to suggest that the treatment he [the applicant's doctor] recommended is inappropriate or unreasonable", the applicant's condition could not be found to be fully treated and stabilised.
Similarly, the Respondent contended that in the matter of Eckersley and Secretary, Department of Family and Community Services [2001] AATA 798, the applicant's doctors had recommended he undertake psychological counselling and commence anti-depressants. The applicant declined to undertake any of the recommended treatment on the basis of his own personal views of the risks and efficacy of anti-depressant medication. Senior Member Bullock determined that his refusal to undertake treatment meant that the condition was not fully treated and stabilised.
The Respondent argued that Mr Merson has been recommended to undertake biological therapy by two specialist rheumatologists, who are well versed in the respective risks and benefits of the proposed treatment. The recommended treatment is stated to be highly effective, and the risks of side effects "uncommon" and "manageable" — particularly noting the option for Mr Merson to have initial therapy in hospital so that he could be monitored closely for any potential side effects to alleviate his concerns. The Respondent submitted that there was no medical or compelling reason for Mr Merson to refuse the treatment.
The Respondent, on the basis of the Determination, the Guide and relevant case law, argued that as Mr Merson refused the recommended reasonable treatment for his condition of ankylosing spondylitis it could not be accepted to have been fully treated and stabilised at the qualification period. As such, no impairment ratings can be assigned to any resulting impairments.
The Respondent argued that if the Tribunal disagreed with the assertion that Mr Merson’s ankylosing spondylitis was not fully treated and fully stabilised as at the qualification period, which was not conceded, the resulting impairment can be assigned an impairment rating of no more than 10 impairment points under Table 1 – Functions requiring Physical Exertion and Stamina.
The Respondent argued that Table 1 was the most appropriate Table to assess Mr Merson’s impairment because even though he experiences some limitation of spinal movement, his main impairments as corroborated by Dr Hall were described as diffuse pain, fatigue and reduced endurance for completing activities.
The Respondent relied on the following evidence, to support a moderate rating under Table 1:
(a)Mr Merson advised he experiences fatigue; repetitive activities such as writing and using a keyboard would result in swelling in his hands; and he can maintain building and gardening for 90 minutes but not at a normal pace;
(b)the JCA of 1 March 2017 recorded that Mr Merson was independent with mobility and was still driving but had some difficulty with neck movements and checking blind spots when the pain exacerbates. Further, that the condition results in reduced endurance, reduced capacity for physical tasks, the pain worsens after periods of rest and improves with activity, and that on a ‘bad day’, he was unable to sit for more than 10 minutes but on a ‘good day’ he could mow the lawn for up to three hours. His sleep is disturbed by frequent awakening due to muscle tension and stiffness;
(c)Mr Merson reported muscle stiffness, swelling in joints, pain and fatigue as corroborated in the material.
Mr Merson advised the Tribunal he can do anything for a short period of time but too much activity leads to inflammation and pain and that fundamentally he is left unable to do anything such as hold a pen or use a mouse. He can drive for short periods but has difficulty turning and this makes him a danger on the road. He does a small amount of housework, shopping and gardening but on the whole leads a very sedentary life. Mr Merson advised that:
… initially I was a remedial masseur and I battled on but it got to the point I couldn’t do three massages a week, tried to mow lawns only got to three hours a week, got too painful. I thought I found the answer by doing tertiary course but I did one semester by that point my hand had swollen up. Worked 50 hours a week for forty years. Wasn’t just that I couldn’t do it, it was 5 months before swelling went down. No doctors or anyone in Centrelink recognise I have any problems. I accept we should try all sorts of things but I can’t think of any job that I could do that would allow me to remain pain free. None of the medications are free of nasty side effects.
The Respondent contended that Mr Merson was unable to meet the threshold to be assigned an impairment rating of 20 points under Table 1 based on his own evidence to the JCA and AAT Tier 1 and there was no corroborating evidence that would support such a finding.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Merson’s long-standing condition of ankylosing spondylitis was fully diagnosed during the qualification period, noting the 2014 report of Rheumatologist Dr Hall which found Mr Merson “was HLAB27 positive, has elevated inflammatory markers and has clear cut sacroiliitis which is grade 3 bilaterally on his x-rays”.[20]
[20] T9, T documents, p 34.
However, the Tribunal is not satisfied the condition was fully treated and stabilised during the qualifying period as Mr Merson had not undertaken reasonable treatment for the condition which had been recommended by two rheumatologists, being a course of biological therapies, namely Adalimumab. In arriving at the conclusion Mr Merson had not undertaken reasonable treatment, the Tribunal relies upon the advice of Dr Le Marshall who stated:
I am concerned that he has persisting inflammation in the blood with significant daytime fatigue and I have instructed Daryl that he is at risk of spinal movement restriction over time in the absence of biological therapy. Daryl is very concerned about the use of biological agents and l have again tried to reassure him today that the main side effects would include an overall slight increased risk of infection, injection site reaction, reactivation off latent infection and a small increased risk of skin cancer. On balance, these side effects are usually very uncommon and manageable whereas the benefits of biological therapy in ankylosing spondylitis tend to be very significant with reduction of daytime fatigue, improvement in inflammatory back pain and a significant improvement in productivity.[21]
[21] T14, T documents, p 133.
The evidence presented to the Tribunal by the Respondent and Mr Merson indicated that this treatment, whilst not a cure for the condition, would result in significant functional improvement. Noting evidence supplied by Mr Merson: There’s no cure for this disease, but different treatments can slow the progression and help you live an active life.
The Tribunal, in accordance with the Guide, considering first Mr Merson’s views (the subjective test) for his objection to the treatment, finds that whilst he had concerns about side effects these were not rationally supported by the medical evidence, nor did the evidence support his assertion he was allergic to all injections and his fear of receiving injections had been reasonably addressed by the rheumatologists he had consulted. Secondly, the Tribunal considered all available information on treatment options and risks (the objective test) and finds that all the medical and research evidence indicated that the serious side effects of the treatment were very rare. The evidence could be summed up from a document supplied by Mr Merson as follows:
11. Myth or Fact? TNF Blocker Side Effects Are Very Dangerous
Not always. But you should educate yourself.
As with most medicines, TNF blockers have some serious side effects. However, most of the very serious side effects are also very rare. An increased frequency of infections, including tuberculosis (TB) or fungal infections, may occur. However, prior to beginning treatment with TNF blockers, a TB test is given to rule out an active infection.
Also, a very rare side effect is the increased frequency of certain cancers, for example:
leukemia (blood cancer)
lymphoma (lymphatic system cancer)
non-melanoma skin cancers (like basal cell and squamous cell).
Infliximab has also been linked with a severe allergic reaction (facial swelling, difficult breathing, low blood pressure).
Based upon both a subjective and objective analysis, Mr Merson’s refusal to have the treatment is not considered reasonable by the Tribunal. The condition cannot be considered fully treated and therefore, an impairment rating cannot be assigned under the Impairment Tables.
The Tribunal did recognise Mr Merson’s objection to the fact he had not undertaken all reasonable treatment options as he has certainly availed himself of numerous treatments, modified his diet and made lifestyle changes to address his condition. However, the Tribunal considered Mr Merson had not taken advantage of the course of treatment recommended by specialists in the field of ankylosing spondylitis, which was proven effective and safe. In arriving at this determination, the Tribunal considered the remarks of Deputy President Forgie in Tlonan where she found:
While it is easy to understand that Mrs Tlonan feels that she has been taking a great deal of medication without any results, there is no evidence on which I can find that the medication has been taken on a basis which could lead to my finding that her migraines have been regarded as "treated" and "stabilised" for the purpose of the Impairment Tables. I am, therefore, unable to find that her migraines have been treated. It follows that an impairment rating cannot be assigned under the Tables for Assessment of Impairment of Disability Support Pension.
The Tribunal does consider that Mr Merson’s long standing condition of ankylosing spondylitis was causing him moderate functional impairment, but this could not be assessed as it was not found to be fully treated or stabilised. Therefore, the Tribunal did not assign any points under Table 1 – Functions requiring Physical Exertion and Stamina for this condition.
Depression, anxiety and stress
On 21 April 2014, Dr Geoffrey Hogan, Consultant Psychiatrist, provided the following report in which he opined:
Thank you for referring Mr Daryl Merson for psychiatric assessment. He is a 56-year-old man living near Moe with his partner. He told me that he was self-employed as a remedial masseur. He has a chronic pain problem of twenty years duration, which, in particular his right hand involvement, limits his capacity for employment. He said that in his dealings with Centrelink they had wanted him to see a rheumatologist and psychiatrist.
Mr Merson told me that he has seen a number of G.P’s and orthopaedic specialists over the years for his chronic pain. He said he felt the orthopaedic specialists did not believe him. He had just recently seen a rheumatologist who had diagnosed ankylosing spondylitis and has prescribed Proxin. He had just started the Proxin but believed it was beneficial.
He has suffered for many years with diffuse pain, particularly in the back of the neck, the right shoulder, and down to the chest. which he said had been associated with broken sleep, which he felt was the cause of his fatigue through the day. He said he has been in "a very unhappy state\ many people had said his pain problem was in his head, and he was clearly reassured by having an organic diagnosis.
In regard to recent affective symptoms, he had as noted broken sleep. Appetite was satisfactory. He said he was quite lacking in energy and interest. He was prone to fatigue. He had previously been sleeping up to five hours in the afternoon. He maintains social contact by telephone but said he had not the energy to visit friends or family although they are nearby. There are not agoraphobic symptoms. Concentration has been poor. He said he was distractible. He lost track of what he was doing. He said that he had been easily stressed…. He said his mood was now satisfactory. It had improved over recent months, particularly having a new partner. He said he had had suicidal thoughts intermittently long-term but had never acted on them.
There is no past history of substance abuse.
There is no know family history of psychiatric disorder.
Mr Merson attended school to Year 11. He said by that time he had lost interest in study and had been starting to fail. He had felt isolated socially at school. He had worked with the National Bank as a teller. He had then worked for three-and-a-half years on a dam project. He had been with Telstra for many years. In recent year's he has worked as a remedial masseur, with as noted problems with both chronic pain and energy levels…. He has a circle of friends in whom he can confide. He indicated that he had given up prior leisure activities because of his health problems.
The impression was of a man with a chronic pain problem who had had associated insomnia and also depressive symptoms intermittently. He is not keen to take any medications but is taking his currently prescribed Proxin. He has had psychological counselling in the past on three occasions which he described as "a waste of time. I would think· that his management is best focussed on his treatment by his rheumatologist for chronic pain. I would not recommend prescription of psychotropic (particularly antidepressant medication), nor a further period of psychological counselling.[22]
[22] T10, T documents, p 126 - 127.
Since July 2019, Dr Zafris has provided Mr Merson with numerous medical certificates which diagnosis depression and anxiety with onset August 2019. She describes symptoms as “low mood, no motivation, insomnia, anxiety, stress, self-harm thoughts/feelings of worthlessness, anger/aggression” and advises treatment as undertaking “counselling with psychologist - CBT, GP review regularly, meditation, music, activity as tolerated within bounds of pain/inflammation, self-help worksheets and a planned psychiatry review if Mr Merson’s symptoms are not improving”.[23]
[23] T48, T documents, p 230.
The Respondent noted that Mr Merson had not claimed a mental health condition in his DSP application, however in Dr Hogan’s report of 21 April 2014, noting that Dr Hogan is a psychiatrist appropriately qualified to provide the diagnosis pursuant to the requirements of Impairment Table 5, he opines that Mr Merson has chronic pain with associated insomnia and depressive symptoms intermittently. Dr Hogan noted Mr Merson had three psychological counselling in the past which Mr Merson described as "a waste of time". Dr Hogan did not recommend prescribing psychotropic medication or further psychological counselling, as he recommended Mr Merson focus on his treatment by the rheumatologist for chronic pain.[24]
[24] T10, T documents, p 126 – 128.
The Respondent accepted that Mr Merson’s depression was fully diagnosed as at the qualification period. However, it contended that the condition was not fully treated or fully stabilised as at the qualification period because aside from the reference in Dr Hogan's report to the three previous counselling sessions, discontinued by Mr Merson prior to April 2014, there was no evidence that Mr Merson had undertaken reasonable treatment for this condition. The Respondent argued this could include pharmacological treatment (anti-depressants) in conjunction with a sustained period of psychological counselling.
The Respondent argued that this condition could not be assessed under Table 5 as it had not been fully treated or stabilised as at the qualification period.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Merson’s mental health condition of depression and anxiety was fully diagnosed during the qualification period, as he had been diagnosed by an appropriately qualified medical practitioner, Dr Hogan in 2014, in accordance with the rules under Table 5 – Mental Health Function. However, the Tribunal is not satisfied the condition was fully treated and stabilised during the qualifying period as there was no evidence of any treatment for the condition. Indeed, the evidence indicated treatment was not recommended. Therefore, an impairment rating cannot be assigned for the condition under the Impairment Tables.
The Tribunal therefore did not assign any points under Table 5 – Mental Health Function for this condition.
IMPAIRMENT RATING
The Tribunal did not assign any impairment points to Mr Merson’s condition as they were determined not to be fully treated or stabilised during the qualification period. Therefore, during the qualifying period Mr Merson did not satisfy s 94(1)(b) of the Act.
DOES MR MERSON HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Mr Merson must not only satisfy the requirement of having impairments that can be assigned 20 points or more under the Impairment Tables, he must also demonstrate that he has a continuing inability to work. Mr Merson would be considered to have a continuing inability to work if he has actively participated in a program of support (POS) within the meaning of s 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the POS, finding that no power exists to dispense of it with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
The Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has not found that Mr Merson has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a program of support.
The Respondent accepted Mr Merson satisfied s 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had participated in a POS, having completed 898 days of active participation in the three year period immediately preceding lodgement of his claim for DSP in accordance with requirements of paragraph 7(2) of the Determination.
The Tribunal finds Mr Merson had completed a POS and satisfies s 92(2)(aa) of the Act.
On 3 October 2018 Workplace Solutions Gippsland, Mr Merson’s disability employment service provider at the time, reported the following:
Barriers to Current/Future Employment
Spondylosis
Endurance limitations
Limited physical abilities
Episodic fluctuations[25]
[25] T62, T documents, p 289.
The JCA report of 1 February 2017 addresses Mr Merson’s work capacity, barriers to employment and provides a rationale for their determination:
Baseline Work Capacity: 15-22 Hours per week
Suitable Work: Light less skilled (W03)
Examples:
data entry, console operator
Rationale:
Ankylosing Spondylitis: verified impacts include pain, stiffness, reduced spinal movements and symptoms of fatigue with reduced endurance. Impacts can fluctuate and affect reliability to sustain and perform tasks, with client noting winter months as affecting endurance to a moderate to severe level. Client is suited to part time participation in sedentary roles which provide flexibility of movement to manage pain symptoms associated with stiffness through immobility. Work capacity consistent with 8-14 hours.
Capacity for work within 2 years with Intervention Work Capacity: 15-22 Hours per week
Suitable Work: Light less skilled (W03)
Examples:
data entry, mail sorting, console operator, telecommunications
Rationale:
With disability specific intervention work capacity may increase. The client is suited to sedentary roles which provide flexibility of movement (to facilitate stretching/repositioning to manage pain symptoms), and do not require completion of physically demanding tasks. Recommended interventions include further medical intervention, retraining, work place adjustments, job matching and post-placement support.[26]
[26] T7, T documents, p 29.
On 11 August 2017, Dr Sharma provided a medical report in which Mr Merson’s work capacity was assessed as follows:
Following Physical examination and Radiographic examination it has been determined that the diagnosis for his symptoms and clinical signs is Ankylosing Spondylitis (AS). Daryl has had AS for a considerable period of time. AS is an auto-immune condition which is a long-term form of arthritis which leads to chronic ongoing pain and stiffness in the spine predominately and there are other associated symptoms as well. There is no cure for AS and the aim of any treatment is to reduce pain levels and inflammation and attempt to slow the inevitable disease progression.
Based on Daryl's signs, symptoms and diagnosis I am of the opinion that It would be extremely difficult for Daryl to perform long hours of employment/voluntary work (more than a couple of hours per day), in particular any type of repetitive work which could be static - as well. Based on the already compromised and injured spinal joints manual labour tasks also would lead to further strain as well. Ongoing work would significantly increase his symptoms leading to further deterioration of his condition. My rational for this is based upon my observations of Daryl on episodes when he has attempted to perform some work and his symptoms significantly spike and it takes a significant time for the symptoms to subside.[27]
[27] T23, T documents, p 80.
The Respondent argued that in the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors, including:
any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500); the availability of work in the person's locally accessible labour market (paragraph;
the availability to the person of a training activity (paragraph 94(3)(a));
the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
the person's preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and
the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517).[28]
[28] Respondent’s Statement of Facts, Issues and Contentions, 30 October 2020, p 15 [78].
The Respondent, relying on the JCA report dated 1 March 2017 in which the assessor opined that Mr Merson’s spondylitis would not prevent him from performing any work for at least 15 hours per week within two years with intervention, argued he did not have a continuing inability to work.
The Respondent contended the Tribunal should prefer the opinion of the JCA as they are a trained and qualified job capacity assessor employed by the Department, have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations, enabling them to determine a person's capacity to work. They have knowledge of labour market issues and experience in assessing the impact of medical conditions on a person's ability to work and are in the best position to properly determine the applicant's capacity to perform work or undertake education or vocational training.
The Respondent argued that the Tribunal should find Mr Merson did not meet the requirements of subsections 94(2)(a) or (b) of the Act during the qualification period, and he does not have a continuing inability to work under subsection 94(1)(c).
The Tribunal notes the often relied on authority in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, where the Tribunal stated at [43]:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.
The Tribunal finds Mr Merson had a continuing inability to work during the qualification period, therefore satisfying s 94(1)(c) of the Act and should be exited from his disability employment service provider and given a permanent exemption from looking for work. The Tribunal relied upon the advice of the JCA who determined Mr Merson had barriers to employment and as such he required work of a sedentary nature, with limited hours and flexibility so he could move during work hours. Additionally, the Tribunal relied upon the report of Dr Sharma who observed it would be impossible for Mr Merson to perform more than a couple of hours of work of a day and could not perform anything of a repetitive nature.
Whilst the Tribunal did not award any impairment points for Mr Merson’s conditions as he had not undertaken reasonable treatment for his conditions to be considered fully treated and stabilised during the qualification period, the Tribunal concurs with the AAT Tier 1’s assessment of Mr Merson’s medical evidence that he has a reduced functional impairment of activities requiring physical extension and stamina.
Mr Merson’s numerous treating doctors all advise his condition of ankylosing spondylitis is an auto-immune condition which is a long-term form of arthritis which leads to chronic ongoing pain and stiffness in the spine predominately and there are other associated symptoms as well.[29] Mr Merson advised he is unable to do any activity for any length of time as it results in swelling of his joints which leads to pain. He cannot walk far, undertake light household duties and would have great difficulty sustaining any work-related tasks noting his inability to continue with his studies. His doctors corroborate that he suffers chronic pain from his peripheral swelling and exacerbation of fatigue from physical activity.
[29] T23, T documents, p 155.
The Tribunal determined, based on the medical evidence, that Mr Merson’s condition would not be cured by undertaking the recommended treatment, but it would assist his symptoms and lead to improved functionality. As Mr Merson is not prepared to undertake the treatment, but manage his pain with his own program of massage, diet, a sedentary life avoiding physical exertion and stress, he continues to suffer the considerable symptoms of his disorder if he undertakes excessive activity and is therefore not capable of undertaking work.
Based on the Tribunal’s findings combined with the fact Mr Merson has been linked to employment services for over eight years meeting all requirements of the program without securing any form of employment, it seems that continuing to force him to travel excess distances to attend this service was unwarranted. The unnecessary financial burden on Mr Merson and the unacceptable risk to both his safety and others on the road seemed to the Tribunal to be a dangerous, futile exercise that could be avoided. Whilst the Tribunal does not have the ability to exit Mr Merson from his program, it strongly recommends that Services Australia should exit Mr Merson from his disability employment program.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application of 11 September 2018, Mr Merson did not have the required 20 impairment points to satisfy s 94(1)(b) of the Act, and whilst not required to assess his work capacity criteria as the first limb of the DSP requirement had not been satisfied, did determine Mr Merson had completed a program of support and had a continuing inability to work.
Without having a severe impairment, Mr Merson cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed. However, the Tribunal believes Mr Merson should be exited from his disability employment service provider and given a permeant exemption from looking for work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
[sgd]………………...........................
Associate
Dated: 28 January 2021
Date of hearing:
20 November 2020
Date of Final Submission: 18 December 2020 Applicant: By telephone Advocate for the Respondent: Ms Sophie Roberts
Solicitors for the Respondent: Mills Oakley
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