Milne and Secretary, Department of Social Services (Social Services Second Review)
[2018] AATA 2306
•13 July 2018
Milne and Secretary, Department of Social Services (Social services second review) [2018] AATA 2306 (13 July 2018)
Division:GENERAL DIVISION
File Number: 2017/1229
Re:Dennis Milne
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:13 July 2018
Place:Adelaide
The Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Milne is qualified to receive the Disability Support Pension from 15 June 2016.
.................[Sgd].......................................................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the applicant's conditions were fully diagnosed, fully treated and fully stabilised at the date of the claim or within 13 weeks – decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services (2015) FCA 1123Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
13 July 2018
INTRODCUTION
The applicant, Dennis Milne, lodged a claim for disability support pension (DSP) on 15 June 2016. Centrelink rejected the claim in the first instance and Mr Milne requested a review of that decision. An authorised review officer of Centrelink subsequently affirmed the decision. Mr Milne requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal. The decision under review was affirmed. Mr Milne applied to the General Division of the Tribunal for a second review.
The Hearing took place on 24 May 2018. Mr Milne was self-represented. He attended the tribunal in person, with his father providing support to him. Mr Nguyen, Sparke Helmore Lawyers, represented the respondent, the Secretary, Department of Social Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
In his DSP claim form, Mr Milne listed his disabilities and illnesses as “abdominal pain, leakage from rectum from which I cannot control, fatigue and shortness of breath.” He wrote that he was expecting to have an operation in the future to repair a stoma. In response to the question about medical treatment and its effect on his ability to work, he commented that he was always tired and depressed.
LEGISLATION AND ISSUES
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 15 June 2016 to 14 September 2016.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
The Secretary accepted that Mr Milne suffers from impairments and therefor satisfied s 94(1)(a) of the Act.
The Secretary contended that Mr Milne’s rectal cancer condition was fully diagnosed, however it was not fully treated and fully stabilised and no impairment points could be assigned under the Impairment Tables.
The Secretary contended that Mr Milne’s mental health condition was not fully diagnosed, treated and stabilised and did not attract impairment points under the Impairment Tables.
The Secretary accepted that Mr Milne’s condition of chronic obstructive pulmonary disease was fully diagnosed, treated and stabilised during the assessment period. However the Secretary contended that this condition did not result in any functional impact and that no points should be allocated under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina).
The main issue for determination is whether Mr Milne’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work. Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.
IMPAIRMENT TABLES
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). That document also contains the Rules for the application of the Impairment Tables.
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for each of Mr Milne’s conditions will be considered in turn by reference to the Impairment Tables.
EVIDENCE OF MR MILNE
Mr Milne gave evidence by affirmation. His evidence was honest and forthright. He told the Tribunal that he resides at home. He is unable to work because of the impact of his medical problems and treatment. He fends for himself as best he can. He prepares his meals and endeavours to attend to domestic tasks around the house. He receives regular visits from friends who assist him with some of his daily tasks, particularly with shopping. He values their support and relies on it quite heavily. He struggles to walk more than 20 metres. He has no social life. On a good day he is able to move around the house. He will try to prepare his meals, clean the house and hang out the washing. On a bad day he can barely get out of bed. He watches TV and he enjoys televised broadcasts of European football. He never uses public transport as the bus stop is over 500 meters away from his house. This pattern of daily life has not changed in any material way since lodging his DSP claim.
The impact of Mr Milne’s medical conditions has been catastrophic. The diagnosis of rectal cancer in mid 2015 was devastating for him personally and for his work and life style. He is a skilled and qualified bricklayer and stone mason. Prior to his health problem he had worked continuously since leaving school in his teenage years. He worked for 40 years as a bricklayer and stone mason in a business with his father. Together they crafted stone work on many buildings, including prestigious houses in Adelaide. In his evidence Mr Milne demonstrated clearly his pride in his achievements. Unfortunately his life has been devastated by the onset of rectal cancer in 2015, through the operations which he has undergone and by the continuing care and attention which he must devote to containment of his health issues. He is now 56 years old. Despite his problems, his evidence indicated a realistic and practical approach in which he clearly does the best that he can, without complaint, to cope with his impairments. He expressed his considerable gratitude to the doctors who have treated him and for their guidance, concern and interest about his condition.
CONSIDERATION
It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[1] at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[1] [2012] AATA 922.
Those comments are particularly relevant to the present case in view of the lapse of time between lodging the DSP claim on 15 June 2016 and the hearing before this Tribunal on 24 May 2018. This is a period of almost two years. The effect of Mr Milne’s evidence and much of the medical evidence is that the negative impact of his conditions has not lessened over the last two years and, if anything, has worsened. Nonetheless, the task for the Tribunal is to assess his condition at the time of the DSP claim and the assessment period. Medical reports which were written after the assessment period are relevant to an extent, but only to the extent to which they are referrable to Mr Milne’s situation during the assessment period.
Rectal cancer
Mr Milne was diagnosed with rectal cancer in June 2015. He had an ulcerated lesion to the posterior aspect of the rectum and it was around six or seven centimetres from the anal verge. He underwent surgery at the Lyell McEwan Hospital on 31 August 2015 to remove the cancerous lesion. He remained in hospital until 2 October 2015 and was discharged with a stoma. He developed an anastomotic leak which was identified in scans between November 2015 and May 2016. He was admitted to hospital in September 2016 with renal failure from dehydration and high ileostomy outputs
Unfortunately the leak from the anastomosis did not heal. Mr Milne also developed a parastomal hernia. On 21 November 2016 he was readmitted to hospital for further surgery to deal with the non-healing leak. He now has a permanent colostomy. The parastomal hernia around the ileostomy was also repaired during that admission to hospital.
The sequence and content of medical certificates is important. Dr E Viljoen is Mr Milne’s general medical practitioner at the Para Hills clinic. Mr Milne was a patient of that clinic from 2008 and Dr Viljoen’s patient since 2012. Dr Viljoen provided a certificate dated 21 August 2015 in which he referred to the condition of bowel cancer as temporary, date of onset was 22 June 2015 and the symptoms were changes in stool habits, noting that Mr Milne would be unable to work after an operation. In Dr Viljoen’s opinion Mr Milne was unfit for work from 21 August 2015 to 21 November 2015 inclusive and was currently unable to work for 8 hours or more per week.[2]
[2] Exhibit 1, T42 p 209.
Similarly, a medical certificate from the oncology chemotherapy unit of the Lyell McEwan Hospital dated 25 August 2015 indicated that Mr Milne would be unfit for work between 1 August 2015 and 31 December 2015.[3]
[3] Exhibit 1, T42 p 210.
Dr Viljoen wrote a medical certificate on 26 November 2015 in which he confirmed that Mr Milne was unfit for work from 21 November 2015 to 21 February 2016. The condition of bowel cancer was described as temporary and the symptoms were general deterioration after surgery, lethargy, that he has a stoma bag and could not do physical work.[4]
[4] Exhibit 1, T42 p 212.
Consistently with the previous certificates Dr Viljoen provided a certificate dated 22 February 2016 in which he confirmed Mr Milne was unfit for work of 8 hours or more per week from 21 February 2016 to 21 May 2016. In relation to bowel cancer he confirmed that the symptoms were episodic abdominal pain and leakage from the stoma and rectum. An operation was planned to repair the stoma.
In a certificate dated 26 May 2016 Dr Viljoen extended the period of unfitness for work from 21 May 2016 to 21 August 2016 and noted the continuing symptoms of leakage from the stoma and rectum, abdominal pain and discomfort.[5]
[5] Exhibit 1, T42 p 214.
In a medical certificate dated 24 August 2016 Dr Viljoen described the condition relating to the bowel as permanent. He wrote that the prognosis was that it was likely to deteriorate within two years. The symptoms were still severe pain with activity, and leakage from the stoma and rectum. In Dr Viljoen’s opinion Mr Milne was unfit for work from 21 August 2016 to 21 November 2016.[6]
[6] Exhibit 1, T42 p 215.
Accordingly, it can be seen from the medical certificates that Mr Milne was certified as being unfit for work of 8 hours or more per week from August 2015 to June 2016, when the DSP claim was lodged, and subsequently to 21 November 2016 which covers the assessment period and slightly more than two months beyond that period. Moreover, the Lyell McEwan hospital colorectal unit provided a medical certificate dated 1 September 2016 which provided an opinion that Mr Milne had been unfit for work from 31 August 2015 and that the incapacity would persist until 1 March 2017. That certificate referred to the condition of rectal cancer and separately to the planned operative repair of the hernia. It was considered that post-operative recovery from the hernia repair would occur within three months.[7]
[7] Exhibit 1 T42 p 216.
Mr D Raju is the colorectal surgeon at the Lyell McEwan hospital who was in charge of Mr Milne’s treatment. Mr Raju’s report dated 12 September 2017[8] provides a helpful summary as follows:
·(Mr Milne) had an ultra-low anterior resection and a loop Ileostomy for a rectal cancer and then developed a chronic leak.
·He also developed a large parastomal hernia associated with his Ileostomy.
·During this period he also developed Renal failure presumably from the high stomal output from his Ileostomy.
·He underwent a Hartmann’s procedure in November 2016 with a permanent colostomy created then.
·At this operation his parastomal hernia around the Ileostomy was repaired.
·My assessment was that the pain that (Mr Milne) was suffering was due to the parastomal hernia and repairing this hernia was aimed at resolving the pain.
·With the resolution or improvement of pain there was a hope that (Mr Milne’s) ability to function would also improve.
[8] Exhibit 7.
In that report Mr Raju also wrote that Mr Milne had a severe functional impact on work activities and daily activities in June 2016 and for an ongoing period. The severe functional impact was because of the parastomal hernia that Mr Milne had. Also from 6 June 2016 and for an ongoing period Mr Raju wrote that Mr Milne had suffered from acute renal failure from dehydration and high ileostomy outputs, weight loss and significant pain in the abdomen, together with foul smelling discharge per rectum intermittently which was expected to continue.. Mr Milne’s last major operation was in November 2016. Mr Raju offered the following opinion about Mr Milne:
“From August 2015 he would not have been able to undertake training activity for 15 or more hours per week until he completely recovers from his most recent operation. … I cannot predict if adequate recovery is going to occur in the future.”
A Job Capacity Assessment report (JCA) was submitted on 16 August 2016.[9] It followed a telephone assessment with Mr Milne on 1 August 2016. The report concluded that the bowel cancer condition was fully diagnosed, however not fully treated and stabilised “as there may be scope for improvement to functioning with further intervention (further colorectal review for possible stoma reversal)”.[10] Accordingly an impairment rating could not be assigned.
[9] Exhibit 1, T36 p 193.
[10] Exhibit 1, T36 p 194.
It is necessary to quote in full the Rules 6(5) and 6(6) of the Impairment Tables in relation to the criteria for determining whether a condition is fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)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.
Fully stabilised
(6)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.
Note: For reasonable treatment see subsection 6(7).
The Secretary conceded properly that the condition of rectal cancer was fully diagnosed. However the Secretary contended further that the rectal cancer condition and hernia were expected to improve as a result of surgery in November 2016, noting that the surgery was scheduled and then undertaken after the expiration of the assessment period. The Secretary noted that Mr Raju anticipated that the surgery would lead to a reduction in Mr Milne’s pain and an increase in his ability to function.
Clearly Mr Milne had undergone significant treatment in August 2015 with follow up treatment and rehabilitation prior to the assessment period. During that period treatment was scheduled because of continuing complications. The surgery took place in November 2016 which is shortly after the assessment period..
A person’s ability to function is not, of course, necessarily equivalent to that person’s ability to function successfully in the workplace. While Mr Raju’s report[11] referred to a hope that Mr Milne’s ability to function would improve, it also indicated that Mr Milne would not have been able to sustain work for periods of more than three hours a day during the assessment period and subsequently.
[11] Exhibit 7.
In addition to the decision in Re Bobera, previously referred to, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services,[12] DP Handley stated (at 33) that:
“The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.
[12] [2014] AATA 447.
In Re Harris v Secretary, Department of Employment and Workplace Relations,[13] Gyles J in the Federal Court stated at para [1]:
“the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[13] [2007] FCA 404.
Further, the Federal Court in Gallacher v Secretary, Department of Social Services[14] stated at paras [26‑28]:
[14] [2015] FCA 1123.
“26 In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252, Gyles J said at 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
(On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)
27In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, Deputy President Handley said at 473 [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
28I respectfully agree with the approach taken in those cases. The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ)”.
Accordingly, the Tribunal may take into account medical reports which come into existence after the assessment period. However, their relevance is confined to the extent to which they shed light on Mr Milne’s medical conditions during the assessment period. In that regard, Mr Raju’s report of 12 September 2017 is relevant to the extent that it provides context to Mr Milne’s condition during the assessment period. It is not relevant in the context of a subsequent change of health or progression of a medical condition. It is not to be interpreted with the benefit of hindsight in reference to Mr Milne’s circumstances during the assessment period.
As Mr Milne’s surgeon in charge of treatment from diagnosis and operation in August 2015, Mr Raju maintained supervision of Mr Milne’s treatment for approximately two years. His report written on 12 September 2017 combines a history of Mr Milne’s treatment, a commentary on Mr Milne’s condition in June 2016 and thereafter, and an assessment of functional impact during the assessment period together with a guarded prognosis about future impact. In relation to the period which Mr Raju described as 6 June 2016, the report refers to Mr Milne’s admission to hospital in September 2016 with acute renal failure and high ileostomy outputs. The report mentions Mr Milne’s weight loss, the problems that he was experiencing requiring stamina and physical exertion, the interference with daily activities, the pain that he was suffering in his abdomen and the difficulties which he had with intermittent bowel leakage.
Dr M Herath was a surgical resident for Mr Raju. He wrote a report dated 3 June 2016, which is shortly before Mr Milne lodged the DSP claim. Dr Herath had reviewed Mr Milne in the colorectal clinic at the Lyell McEwin Hospital and he reported that Mr Milne’s medical condition was “causing significant debilitating issues, both physical and psychological, that are significantly impacting his ability to work”.[15] The report suggested that it might take several months to years for Mr Milne to recover. It was around this time that Mr Milne lodged his DSP claim.
[15] Exhibit 1, T34 p 191.
It is clear that a medical condition could be considered to be fully treated despite the fact that treatment is still continuing or is planned to occur. For example, this could occur where an individual’s functional capacity is not going to improve within the following two years despite the continuation of reasonable treatment. In determining whether Mr Milne’s condition was fully treated during the assessment period consideration of the past treatment and its expected results, the plans for further treatment and the effectiveness of the past and future treatment are all relevant factors.
The Tribunal is satisfied that Mr Milne had undertaken reasonable treatment for the condition of rectal cancer prior to and during the assessment period. In assessing whether a condition is fully stabilised, it must be determined whether Mr Milne had undertaken reasonable treatment and whether there are prospects for significant functional improvement in the next two years.
The prospects during the assessment period for further reasonable treatment to result in significant functional improvement for Mr Milne within the next two years were not good. Indeed, they were unlikely. Moreover, the requirements for significant functional improvement necessitate the ability to undertake work in the two year period.
This is confirmed by contemporaneous, medical reports as previously summarised. Dr Herath’s report was written on 3 June 2016. Dr Viljoen’s medical certificate written on 24 August 2016 confirmed the permanency of the bowel condition and prognosis that it was likely to deteriorate. Mr Raju’s reports that were written after the assessment period, cast light on the position during the assessment period, in relation to matters that were known reported and predicted during that period.
To the extent that Mr Raju’s reports refer to treatment and the efficacy of treatment after the assessment period, they do not bear upon the Tribunal’s decision. The Tribunal has taken into account the evidence about the history of Mr Milne’s condition, his response to treatment prior to and during the assessment period and his expected of level of recovery at that time.
Accordingly, the Tribunal is satisfied that Mr Milne’s rectal cancer condition was fully diagnosed at the time of the DSP claim and it was fully treated and fully stabilised during the assessment period.
Having regard to all of the evidence the Tribunal considers that as at 15 June 2016 or within 13 weeks of that date, Mr Milne’s condition of rectal cancer was permanent and his impairment was likely to persist for more than two years. Therefore an impairment rating can be given for this condition.
Table 13 provides the descriptors relating to continence function where a person has a permanent condition resulting in functional impairment related to incontinence of the bladder or the bowel.
In relation to bowel conditions Table 13 provides the following criteria for a moderate functional impact:
Points
Descriptors
10
There is a moderate functional impact on maintaining continence of the bladder or bowel.
(1) At least (2), (3) or (4) applies.
Bladder
(2) The person:
(a) has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day; and
(b) in respect of continence of the bladder has difficulties that result in interruption to tasks, work or training on most days.
Bowel
(3) The person:
(a) has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear and stain outer clothes if a continence pad is not worn) in most weeks; and
(b) in respect of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days.
Continence aids
(4) The person:
(a) has a stoma, or uses a catheter or other collection device to manage their continence independently but requires frequent bag or catheter changes, or has frequent equipment failure; and
(b) in respect of continence aids has difficulties that result in interruption to tasks, work or training on most days.
For a severe functional impact on maintaining incontinence of the bowel, Table 13 provides the following criteria:
Points
Descriptors
20
There is a severe functional impact on maintaining continence of the bladder or bowel.
(1) At least (2), (3) or (4) applies.
…
Bowel
(3) In respect of continence of the bowel:
(a) the person’s condition may affect the comfort or attention of co-workers; or
(b) the person has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or
(c) the person has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly.
Continence aids
(4) In respect of continence aids:
(a) the person’s condition may affect the comfort or attention of co‑workers; or
(b) the person has a stoma, or uses a catheter or other collection device to manage their continence and needs some assistance from another person to manage the continence aid; or
(c) the person wears continence pads and needs some assistance to change these during the day.
The evidence establishes that Mr Milne sustained a severe functional impact on maintaining continence of the bowel. In particular, criteria (3)(a), (3)(b) and (4)(a) apply. The appropriate rating is 20 impairment points for his continence function.
Mental Health condition
Dr Viljoen medical certificate dated 24 August 2016 refers to a condition of depression/anxiety.[16] Previous medical certificates did not refer to that condition. However the evidence indicates that Mr Milne’s psychological wellbeing was deteriorating because of the significant impact of his medical problems, treatment and maintenance. Dr Viljoen referred him for psychological assessment which was undertaken by a clinical psychologist, Ms C Black. Mr Milne consulted her on a number of occasions commencing in January 2017. In his evidence he confirmed Ms Black’s therapeutic approach was extremely helpful.
[16] Exhibit 1, T42 p 215.
Ms Black provided a report dated 10 February 2017.[17] In that report she confirmed that the first psychology session occurred on 9 January 2017. She reported that Mr Milne had adjustment disorder with associated symptoms of severe depression and anxiety related to life changing illnesses. She reported that he suffered from chronic and disabling pain. She commenced psychological therapy including cognitive behavioural therapy for depression, anxiety and pain management.
[17] Exhibit 4.
The Secretary contended that Mr Milne’s psychological condition was not fully diagnosed, treated and stabilised during the assessment period.
While there is no doubt that Mr Milne has suffered from depression and anxiety which was diagnosed subsequent to the assessment period, the evidence does not provide any basis for finding that those conditions were diagnosed, treated and stabilised during the assessment period. Therefore the Tribunal is unable to assign an impairment rating to this condition.
Chronic Obstructive Pulmonary Disease
This condition was diagnosed on Mr Milne’s admission to the Lyell McEwan Hospital on 31 August 2015.[18] Treatment was the use of regular puffers with the general medical practitioner to provide ongoing care as required. Dr Viljoen’s medical certificate dated 22 February 2016[19] refers to this condition as permanent with symptoms of shortness of breath on activity. Current treatment was the use of puffers and the recommendation was to stop smoking. These comments were repeated in the subsequent medical certificates signed by Dr Viljoen.
[18] Exhibit 1, T29 p184-185.
[19] Exhibit 1, T42 p213.
The JCA report[20] concluded that this condition was permanent and fully diagnosed, treated and stabilised, the treatment was reasonable and no improvement to functioning was expected over the next 24 months. The report recommended a rating of zero points under Impairment Table 1.
[20] Exhibit 1, T36 p 193-213.
Impairment Table 1 refers to functions requiring physical exertion and stamina and it is used when a person has a permanent condition resulting in functional impairment.
Where there is no functional impact on activities requiring physical exertion or stamina the descriptors under Table 1 are as follows:
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
For a mild functional impact on activities requiring physical exertion or stamina:
Points
Descriptors
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
The Secretary accepted that the condition was fully diagnosed, treated and stabilised, however, it did not lead to any adverse functional impact. The Tribunal agrees. Accordingly no points are allocated under Table 1.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Mr Milne had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a continuing inability to work as follows:
“(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years”.
With an impairment rating of 20 points under a single Impairment Table, it follows that Mr Milne has a severe impairment within the meaning of s 94(3B) of the Act and he does not need to meet the requirement of actively participating in a program of support.
In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded. They are set out in Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[21]as matters to be disregarded, namely:
[21] [2012] AATA 664.
“23.In respect of whether the applicant has a continuing inability to work under s 94(1)(c)(i), the Secretary submitted that a number of factors must be disregarded. It was submitted that these included:
—any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001)116 FCR 500);
—the availability of work in the person’s locally accessible labour market (s 94(3)(b));
·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) 96 ALD 769; Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517)”.
The JCA report dated 17 September 2015 recorded that Mr Milne had a baseline work capacity of 30 plus hours per week, a temporary work capacity of 0-7 hours per week and a capacity for work within two years with intervention, of 30 plus hours per week. The report stated that Mr Milne’s conditions at that time were not fully diagnosed, treated and stabilised. Barriers that needed to be addressed were identified as frequent hospitalisation and demands of treatment.[22]
[22] Exhibit 1, T28 p 180-183.
The subsequent JCA report submitted on 16 August 2016 was provided during the assessment period. It recorded Mr Milne’s temporary work capacity as zero – 7 hours per week in the period to 1 January 2017, with a baseline work capacity of 8‑14 hours per week and a capacity for work within two years with intervention of 15‑22 hours per week.[23] The second JCA report provided a rationale for the baseline work capacity as follows:
“Work capacity is reduced due to the functional impact associated with the permanent conditions of bowel cancer, chronic obstructive airways disease, depression and anxiety impair Mr Milne’s ability to consistently attend or persist at work or other activities, manage conflict, maintain a positive outlook and mood, manage fear or anxiety about work issues, manage pain, maintain required work pace without tiring, lift, carry or move objects, sit or stand for prolonged periods”.
[23] Exhibit 1, T36 p 193-199.
The JCA report noted that Mr Milne would require specialised assistance to determine a return to work. The report also noted that Mr Milne would require regular long‑term support in the workplace. In order to achieve a capacity for work within two years with intervention of 15‑22 hours per week, the JCA report anticipated that a variety of interventions would be necessary. They include assistance through vocational counselling, job seeking skills, disability management, workplace assessment, workplace modifications, further training, work experience and post‑placement support in light, less skilled work which involves sedentary activities.
It is clear from Mr Milne’s evidence that prior to the diagnosis of rectal cancer, he was a dedicated, hardworking, skilled bricklayer and stonemason. He was proud of his work. His capacity and commitment for that work had endured throughout his working life. His capacity for work, in the general sense, was never in doubt. The functional impact of his capacity for work during the assessment period is another matter. His medical condition at that time was severe and the demands of treatment were constant.
There was a need to be realistic and practical about the type and extent of work which he could seek to undertake within a period of two years. As previously stated, Mr Milne’s general medical practitioner, Dr Viljoen, provided a medical certificate dated 24 August 2016 which confirmed a prognosis that the symptoms from the bowel cancer were likely to deteriorate within two years, thereby affecting Mr Milne’s capacity for work or study. Dr Viljoen was the coordinating, general medical practitioner with access to Mr Milne’s specialist, medical reports and analyses.
Work is defined in s 94(5) of the Act as follows:
“‘work’ means 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”.
The Tribunal considers that Mr Milne’s impairment from the rectal cancer condition led to a loss of functional capacity which prevented him from working at least 15 hours per week.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
“‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre‑vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work‑related training (including on‑the‑job training)”.
Consistent with Mr Milne’s inability to work, it is clear that he would have extreme difficulty undertaking and maintaining a relevant training activity. The Tribunal considers that Mr Milne’s impairments were sufficient to prevent him from undertaking a training activity within two years of the assessment period.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
The Tribunal is satisfied that the condition from which Mr Milne suffers which gives rise to an impairment rating under the Impairment Tables is the condition of rectal cancer. The appropriate rating for that condition is 20 points under the Impairment Tables. That is a severe impairment within the meaning of s 94(3B) of the Act. With a total of 20 impairment points, the criterion in s 94(1)(b) of the Act is satisfied.
In view of the finding that Mr Milne has a severe impairment, there is no need for him to have actively participated in a program of support within the meaning of s 94(3C) of the Act.
In all of the circumstances, the Tribunal is satisfied that Mr Milne has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Milne is qualified to receive the Disability Support Pension from 15 June 2016.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
.........................[Sgd]...............................................
Administrative Assistant
Dated: 13 July 2018
Date(s) of hearing: 24 May 2018 Applicant: In person Advocate for the Respondent: Mr Nguyen Solicitors for the Respondent: Sparke Helmore Lawyers
0
12
0