Moore; Secretary, Department of Social Services and (Social services second review)
[2020] AATA 3731
•23 September 2020
Moore; Secretary, Department of Social Services and (Social services second review) [2020] AATA 3731 (23 September 2020)
Division:GENERAL DIVISION
File Number: 2019/6912
Re:Secretary, Department of Social Services
APPLICANT
Michael MooreAnd
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:23 September 2020
Place:Brisbane
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 20 September 2019 and substitutes a decision that the Respondent was not qualified for Disability Support Pension at the date of his claim on 17 November 2017 or in the 13 weeks thereafter.
.....................[SGD]...................................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
23 September 2020
INTRODUCTION
The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 20 September 2019. On that date, the SSCSD set aside the decision of the Applicant and referred the matter back for reconsideration in accordance with a direction that Mr Michael Moore (the Respondent) satisfied sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) as at 6 November 2017.[1]
[1] Exhibit 1, T Documents, T2, pages 4-19, Decision of the SSCSD.
BACKGROUND
On 17 November 2017, the Respondent lodged a claim for Disability Support Pension (DSP).[2] On his DSP claim form the Respondent lists the following disabilities, illnesses or injuries:[3]
·Head injury 1993
·Coronary artery disease (stent) 2014
·Hypercholesterolemia
·Chronic backpain
·Chronic ankle pain
·Smoker (on quitting)
·Alcohol moderate intake
[2] Exhibit 1, T Documents, T8, pages 94-124, Claim for DSP.
[3] Exhibit 1, T Documents, T8, page 120, Claim for DSP.
On 27 June 2018, an Assessor, whose professional discipline is listed as a Registered Occupational Therapist conducted a face to face assessment of the Respondent and provided an Employment Services Assessment Report of the same date.[4] The Assessor formed the view that the Respondent had the capacity to work 15-22 hours per week within 2 years with intervention.[5]
[4] Exhibit 1, T Documents, T16, pages 156-161, Employment Services Assessment Report.
[5] Exhibit 1, T Documents, T16, pages 158-159, Employment Services Assessment Report.
On 26 August 2018, an Assessor, whose professional discipline is listed as an Exercise Physiologist reviewed the Respondent’s claim for DSP and medical evidence and provided an Assessment Services Recommendation for Disability Support Pension Medical Eligibility Report. The Assessor recommended that the Respondent’s claim was manifestly medically ineligible, providing the opinion that the Respondent’s conditions were not fully diagnosed, fully treated and fully stabilised.[6]
[6] Exhibit 1, T Documents, T18, pages 163-164, DSP Medical Assessment Recommendation.
A decision was made to reject the Respondent’s claim for DSP on 5 September 2018, on the basis that the Respondent did not have an impairment of 20 points or more under the Impairment Tables.[7]
[7] Exhibit 1, T Documents, T19, pages 165-166, Centrelink Notice: Rejection of DSP claim.
The Respondent sought review of the decision.[8]
[8] Exhibit 1, T Documents, T29, page 230, Centrelink customer contact notes.
On 25 March 2019, an Authorised Review Officer (ARO) affirmed the decision to refuse the Respondent’s claim for DSP. The ARO made the following key findings:[9]
·Your conditions of coronary artery disease (CAD), hypercholesterolemia, hypertension, back pain and head injury are not accepted as being permanent as they have not been fully treated and stabilised.
· You do not have an impairment rating of 20 points or more.
· The decision to reject your claim for Disability Support Pension was correct.
[9] Exhibit 1, T Documents, T22, pages 169-174, ARO Decision and Notes.
On 17 June 2019, the Respondent sought review of the DSP refusal decision by the SSCSD.[10] On 20 September 2019, the SSCSD set aside the Applicant’s decision and substituted its own decision that the Respondent satisfied sections 94(1)(a), (b) and (c) of the Act and was therefore qualified for DSP. The SSCSD concluded that the: [11]
·Respondent’s Coronary Artery Disease with stent, hypercholesterolemia and hypertension conditions were fully diagnosed, fully treated and fully stabilised as at the Relevant Period and caused a severe impairment attracting a rating of 20 points under Table 1 of the Impairment Tables.
·Respondent’s osteoarthritis and back pain, hearing loss and headache conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore could not be assigned an impairment rating under the Impairment Tables.
·Respondent had a continuing inability to work.
[10] Exhibit 1, T Documents, T26, pages 179-180, Referral to SSCSD.
[11] Exhibit 1, T Documents, T2, pages 4-19, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 22 October 2019.[12]
[12] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
On 12 February 2020, Dr Robin O’Toole, Occupational and Environmental Physician, examined the Respondent at the Applicant’s request. Subsequently, Dr O’Toole provided a report dated 4 March 2020 and opined that the Respondent’s heart and degenerative spine conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and could be assigned 5 points respectively under Table 1 and Table 4 of the Impairment Tables. [13] Dr O’Toole further opined that the Respondent did not have a continuing inability to work.[14]
[13] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
[14] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
On 14 September 2020, a Hearing was held for this application. At the Hearing, the Respondent was supported by his wife Mrs Narelle Moore. Both the Respondent and Mrs Moore gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Respondent is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Respondent have a physical, intellectual or psychiatric impairment;[15]
2.Do the Respondent’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.Does the Respondent have a continuing inability to work?[17]
[15] Section 94(1)(a) of the Act.
[16] Section 94(1)(b) of the Act.
[17] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person could, or could not do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[20]
[18] Section 6(1) of the Determination.
[19] Section 6(2) of the Determination.
[20] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]
[21] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP the condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[22] As such, a condition could be considered permanent from the perspective of being life‑long, but still not meet the definition under the DSP requirements.
[22] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(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.
[24] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]
[25] Section 6(7) of the Determination.
In selecting the applicable Impairment Table, the Determination considers it necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26]
[26] Section 10 of the Determination.
In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]
[27] Sections 10(3) and (4) of the Determination.
[28] Sections 10(5) and (6) of the Determination.
An impairment rating: can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[29]
[29] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a Program of Support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[30]
[30] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]
[31] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Respondent’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 17 November 2017, being the date, the Respondent lodged his claim for DSP, and ending 13 weeks later on 16 February 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Respondent’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Respondent had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Applicant considers the Respondent’s impairments include Coronary Artery Disease,[34] hypercholesterolemia and hypertension,[35] osteoarthritis/lumbar spine,[36] cervical spine,[37] headaches[38] and hearing loss conditions.[39]
[33] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, page 20, paragraph 4.22.
[34] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, pages 20-22, paragraphs 4.23-4.30.
[35] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, pages 22-23, paragraphs 4.31-4.33.
[36] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, page 23, paragraphs 4.34-4.36.
[37] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, pages 23-24, paragraphs 4.37-4.41.
[38] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, page 24, paragraph 4.42.
[39] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, pages 24-25, paragraphs 4.43-4.44.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Respondent’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Respondent have a continuing inability to work?
EVIDENCE
Evidence provided through the Respondent’s claim for DSP
The Respondent has been treated by cardiologists at the Townsville Hospital since at least 2014 and up to March 2018. The Respondent has been provided with a diagnosis of Coronary Artery Disease.[40] The Respondent underwent an intravascular ultrasound and one stent was inserted into a single coronary artery on 2 July 2014.[41]
[40] Exhibit 1, T Documents: T15, pages 140-155, Medical evidence; T13, pages 132-133, Medical report: Dr Raibhan Yadav; T12, pages 130-131, Medical report: Dr Wei Sim.
[41] Exhibit 1, T Documents, T15, page 147, Procedure report: Dr Ryan Schrale, Consultant Interventional Cardiologist .
In a Medical Report for DSP, dated 17 October 2014, Dr Edel Garcia, General Practitioner provided a diagnosis of Coronary Artery Disease with current symptoms being outlined as “chest pain, shortness of breath, tired, easy fatigue.”[42]
[42] Exhibit 1, T Documents, T4, page 71, Medical report – Disability Support Pension (DSP): Dr Edel Garcia.
In a letter dated 16 November 2017, Dr Garcia outlined the Respondent’s past medical history as:[43]
06/11/2017 Hypercholesterolaemia
06/11/2017 Hypertension
17/11/2017 IHD
17/11/2017 Stent, coronary artery
[43] Exhibit 1, T Documents, T9, page 125, Medical report – Dr Edel Garcia.
In that letter Dr Garcia did not outline any functional impairments resulting from the outlined medical history.[44] This was the situation consistently throughout the letters provided by Dr Garcia until the letter of 10 October 2018.[45] Dr Garcia provided:[46]
[44] Exhibit 1, T Documents, T9, page 125, Medical report – Dr Edel Garcia.
[45] Which expanded on a letter dated 3 October 2018: Exhibit 1, T Documents, T21, page 168, Medical report – Dr Edel Garcia.
[46] Exhibit 1, T Documents, T21, page 168, Medical report – Dr Edel Garcia.
This is to certify that [the Respondent] is a patient from our Practice.
He has been my patient for several years from other Medical Centres.
He suffers from recurrent pain in different body regions related to severe Osteoarthritis developed after previous accidents years ago.
He usually complains of pain in his neck, lower back, shoulder and ankles. He also suffers from numbness in his head from previous head injuries.
He has been extensively studied in the past and there is no other treatment than conservative. He has been treated with medications and physiotherapy with partial improvements but he remains symptomatic most of the times.
He has been fully treated and every year he currently receive free Physiotherapy sessions as part of his GP management and treatment plan.
He also suffers from Ischaemic Heart Disease treated with coronary stents before. He has been seen regulary by Cardiology Department at Townsville Hospital. His condition is stable at present but requires medications and further follow up with specialists.
He also suffers from other medical conditions as stated bellow.
Due to the previous explanation and previous medical history supplied, I do not think he is fit for any job at present.
Hoping you find this in order.
Medical History:
06/11/2017 Hypercholesterolaemia
06/11/2017 Hypertension
17/11/2017 IHD
17/11/2017 Stent, coronary artery
In an extract of patient details form completed by Dr Garcia on 11 January 2018 he provided a diagnosis of ischaemic heart disease with the symptoms listed as frequent shortness of breath on mild exertion, chest discomfort.[47] These symptoms were consistently recorded by Dr Garcia in Centrelink Medical Certificates between 2014 and 2018.[48]
[47] Exhibit 1, T Documents, T11, pages 128-129, Extract of patient details form: Dr Edel Garcia.
[48] Exhibit 1, T Documents, T27, pages 181-188, Medical Certificates.
In a report dated 29 March 2018, Dr Raibhan Yadav, Cardiologist discharged the Respondent from the care of the Cardiology Department of the Townsville Hospital into the care of Dr Garcia. He reported that:[49]
His [the Respondent] symptoms are essentially of fatigue and severe back pain. I do wonder whether he has any sleep apnoea and I would be grateful for your onward referral for a sleep study. Back pain is out of my purview and he is considerably aggrieved that he cannot access the disability pension. I will leave that to you to sort out.
[49] Exhibit 1, T Documents, T15, page 137, Medical Report: Dr Raibhan Yadav
In a letter dated 6 June 2019, Dr Garcia provided:[50]
[50] Exhibit 1, T Documents, T25, pages 177-178, Medical report: Dr Edel Garcia.
This is to certify that [the Respondent] is a patient from our Practice.
He has been my patient for several years from other Medical Centres.
He suffers from recurrent pain in different body regions related to severe Osteoarthritis developed after previous accidents years ago.
He usually complains of pain in his neck, lower back, shoulder and ankles. He also suffers from numbness in his head from previous head injuries.
He has been extensively studied in the past and there is no other treatment than conservative. He has been treated with medications and physiotherapy with partial improvements but he remains symptomatic most of the times.
He has been fully treated and every year he currently receive free Physiotherapy sessions as part of his GP management and treatment plan.
He also suffers from Ischaemic Heart Disease treated with coronary stents before. He has been seen regularly by Cardiology Department at Townsville Hospital. His condition is stable at present but requires medications and further follow up with specialists.
He also suffers from other medical conditions as stated bellow.
Up to date all forms of suitable treatment has been exhausted and his conditions will not improve.
Due to the above mentioned medical issues and previous medical history supplied, I do not think he is fit for any job at present, and his claim for disability support pension should be granted.
Hoping you find this in order.
06/11/2017 Hypercholesterolaemia
06/11/2017 Hypertension
17/11/2017 IHD
17/11/2017 Stent, coronary artery
30/4/2019 COPD
09/06/2019 Back pain syndrome
09/06/2019 Shoulder impingement syndrome
09/06/2019 Osteoarthritis
09/06/2019 Neck pain with radiculopathy
The medical evidence before the Tribunal shows that the Respondent’s hypercholesterolemia and hypertension were diagnosed and treated with medication from at least 6 November 2017.[51]
[51] Exhibit 1, T Documents, T9, page 125, Medical report: Dr Edel Garcia and Exhibit 2, Tribunal Book, A3, Section 38AA Documents, Documents received under section 196 from Douglas Family Medical Centre, pages 32 and 38.
Reports provided by Dr Garcia and the Respondent’s patient notes from the Douglas Family Medical Centre show that he has suffered from chronic back pain for a long period of time after being involved in a major motor vehicle accident some 40 years ago. The Respondent received physiotherapy and medication to assist with the management of his back pain.[52]
[52] Exhibit 2, Tribunal Book, A3, Section 38AA Documents, Documents received under section 196 from Douglas Family Medical Centre, pages 30-85; Exhibit 1, T Documents, T11, pages 128-129, Extract of patient details form: Dr Edel Garcia; T14, page 134, Physiotherapy Report: Katrina Kerr and T27, pages 183 and 185 Medical Certificates.
On 20 February 2018, the Respondent underwent an audiogram.[53] In a report of the same date, Mr Neelam Sunder, Audiologist commended that “Pure tone audiometry showed mild to moderate high frequency sensorineural hearing loss in the Right ear and a moderate high frequency hearing loss in the Left ear.” Mr Sunder suggested that the Respondent may require further evaluation.[54]
[53] Exhibit 1, T Documents, T15, page 136, Audiology report: Neelam Sunder, Audiologist.
[54] Exhibit 1, T Documents, T15, page 136, Audiology report: Neelam Sunder, Audiologist.
In the medical reports and notes before the Tribunal the first mentions of the Respondent’s headaches were provided in:
·a letter from Ms Leanna Clarke, physiotherapist on 18 May 2018.[55]
·a CT scan of head report dated 8 August 2018, which provided reference to clinical history being frequent headaches.[56]
[55] Exhibit 2, Tribunal Book, A3, Section 38AA Documents, Documents received under section 196 from Douglas Family Medical Centre, page 43.
[56] Exhibit 1, T Documents, T17, page 162, CT head report and findings of Dr A. Patel, Radiologist.
In the medical certificates and letters provided by Dr Garcia both referencing consultations before, during and after the Relevant Period he had not made reference to the Respondent’s hearing loss or headaches.
Evidence of the Respondent
At the Hearing, the Respondent and Mrs Moore provided evidence under affirmation and told the Tribunal:
·They agree with the decision of the SSCSD as he has been ‘stuffed’ for three years with shortness of breath and cannot remember anything, he uses alarms for everything.
·He had been fighting to keep jobs after he had the stent done. He would drive a truck to its destination and then be flown home.
·He has trouble finding things on his phone which is frustrating and upsetting.
·He was on DSP before but he went off it – fighting for 18 years to keep going to work.
·He would forget to do things at work or do them wrong.
·During the Relevant Period, he was doing house work but can not now. He would do things but at his own pace. He would often need to take breaks, for example doing the vacuuming or making a bed were tasks that he did over a period of time taking breaks as he needed to. He did what he could at his own pace.
·His health has been going downhill for a number of years and he has fought to keep going but it is so bad now that he cannot fight any more.
·He was a carer for his father-in-law for two years up until the middle of 2018. This entailed him getting his father-in-law coffee and preparing his breakfast and lunch. A nurse would come and bath him and look after him. Occasionally he would battle along and help his father-in-law to his bedroom. Most of the times his father-in-law made his own bed. He did not have to rush when helping his father-in-law, he just always took a steady pace. His father-in-law could always go to the toilet independently.
·His neck and shoulder had been ‘stuffed’ for a number of years.
·During the Relevant Period he could walk into a shopping centre and around the shop, but at his own pace, he could not race around. Now he sits outside the shop and waits for Mrs Moore.
·It takes him two days to mow their small lawn.
·He recently saw a neurologist in relation to his neck and shoulder who said his neck is ‘stuffed’ and he cannot do anything.
·His high cholesterol and hypertension had been treated with medication that had not changed over a long period of time – it was well managed.
·His headaches brings tears to his eyes.
·He had his hearing tested and they said it was alright.
·He has diabetes but it is well managed, he had cut down his sugar intake.
·During the Relevant Period:
oHe could sit in a car for 30 minutes, however prior to this he could travel the 1200 km to visit his mother in a day now it takes two days as he needs breaks and has to have overnight stays along the way.
oHe could wash his hair but hanging up washing on the line was a major job, he would need to take breaks.
oHe had difficulty moving his neck to use his revision mirrors.
oHe could lift something from the kitchen table.
oHe had trouble putting his boots on.
oHe sat in a plastic yard chair as he could get in and out of it and it was more comfortable than a couch.
·He sits in a plastic yard chair as it is more comfortable than a couch.
On cross-examination, the Respondent told the Tribunal:
·His health is worse today than in November 2017.
·He did not help his father-in-law get out of bed or go to the toilet.
·He remembered seeing Dr O’Toole. When asked if he remembered telling Dr O’Toole that:
Up until eighteen months ago (mid 2018) he was caring for his father-in-law, which he stated that he had been doing for the previous two years. This involved him getting his father-in-law out of his bed, making his bed, feeding him, assisting him onto the toilet and off again, pushing him around in his wheelchair.
He did not say that to Dr O’Toole. He did not help him with that he just got him a sandwich ready and pulled up the bed really.
·He could walk 300 metres.
·He could sit for an hour however he does not sit normally, he half lays in the seat to take the pressure off his back.
Evidence of Dr Robin O’Toole
At the request of the Applicant, Dr O’Toole, Occupational and Environmental Physician, examined the Respondent on 12 February 2020. Dr O’Toole was provided with the T- Documents and provided a report dated 4 March 2020.[57]
[57] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
Rather than reproduce Dr O’Toole’s full report within this decision, the Tribunal notes that Dr O’Toole provided the following summary:[58]
[The Respondent] is a 61-year old man whom you have asked me to assess regarding his claim for a disability support pension.
After assessing all of the information presented to me, and examining [the Respondent], it is evident that [the Respondent] has a diagnosis of coronary artery disease and has undergone stenting.
Follow up testing has demonstrated no ongoing coronary artery blockage of significance, or loss in ventricular function. He also has long standing degeneration affecting the lumbar spine and the neck.
[The Respondent] has advised that he does not have significant capacity to perform activities of daily living, or work. The loss of work has come about secondary to him not being offered any more contracts for work, as opposed to him being deemed medically unfit to perform work.
During the time that he was not working, he was able to care for his father-in law, performing activities in assisting his father-in-law, that he has advised he was not capable of performing for himself.
[The Respondent] has described symptoms of exertional fatigue and also back pain that is not consistent with what would be expected when considering what he has demonstrated during the physical examination.
[58] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
In considering questions relating to the qualification requirements for DSP, Dr O’Toole provided the following opinion:[59]
·The Respondent suffered from Coronary Artery Disease that was mild in nature following previous insertion of a coronary artery stent and did not result in loss of ventricular function. This condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and resulted in a mild functional impairment under Table 1 of the Impairment Tables. This is based upon [the Respondent] having occasional symptoms, being able to walk to local facilities (corner shop), perform heavier household activities, and could perform most work-related tasks other than tasks involving heavy manual labour. Though [the Respondent] was not working at the time, the job demands of a personal carer had been used as a benchmark of capacity due to the role that he fulfilled caring for his father-in-law.[60]
·The Respondent had degeneration of the cervical and lumbar spine that is evidence from imaging. These degenerative conditions in nature, and considering the extent of the symptomatology were fully diagnosed, fully treated and fully stabilised during the Relevant Period. These conditions resulted in a mild functional impairment under Table 4 of the Impairment Tables.[61]
·The Respondent has the capacity to work at least 15 hours per week, as well as the capacity to undertake training activity for the same length of time. He has some functional limitations that would prevent him from performing full time, heavy manual work, however he has demonstrated the capacity to work as a carer despite these limitations.[62]
[59] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
[60] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 10-11.
[61] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, page 12.
[62] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 13-14.
At the Hearing, Dr O’Toole appeared by telephone and gave evidence under affirmation. Dr O’Toole told the Tribunal:
·He is an Occupational and Environmental Physician who has been specialising in this field for 8 years.
·He examined the Respondent in person in February 2020 and provided a report dated 4 March 2020.
·He confirmed that he had referred to the material he had been provided by the Applicant at the time of writing the report and had since reviewed the clinical records of Dr Garcia.
·That he does not have any corrections to make or anything to add to his report.
·When referred to his report where he wrote: “Up until eighteen months ago (mid 2018) he was caring for his father-in-law, which he stated that he had been doing for the previous two years. This involved him getting his father-in-law out of his bed, making his bed, feeding him, assisting him onto the toilet and off again, pushing him around in his wheelchair.” and asked what information he had relied on in making those comments, that he relied on the activities the Respondent had said he performed.
·That in his opinion the Respondents Coronary Artery Disease could be assigned a mild functional impairment under Table 1 of the Impairment Tables based on his capacity to walk and perform physically active tasks and tasks for his father-in-law. He said that the requirements to reach the moderate functional impairment rating under Table 1 were greater than what was explained to him.
·That hypertension and cholesterol were not functional disorders and over time they increase the likelihood of cardiological events and that is why we manage them .
·That in his opinion the Respondent’s back condition could only attract a mild rating under Table 4 of the Impairment Tables because of the abilities demonstrated by and explained to him by the Respondent. He was able to bend to knee level and stand up to make the bed.
·That his opinion would not change even if after the Relevant Period the Respondent was referred to a neurosurgeon in relation to his neck condition as the condition is degenerative and will continue to progress over time.
·That he had focused on the Relevant Period when writing his report.
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 1 of the Impairment Tables deals with functions requiring physical exertion and stamina and provides as follows:[63]
Table 1 - Functions requiring Physical Exertion and Stamina
[63] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.
Introduction to Table 1
· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
o a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
o results of exercise, cardiac stress or treadmill testing.
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.
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).
Points
Descriptors
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Points
Descriptors
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Table 4 of the Impairment Tables deals with spinal function and provides as follows:[64]
Table 4 – Spinal Function
[64] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
Introduction to Table 4
· Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
o a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
· In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Points
Descriptors
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
CONTENTIONS
Applicant’s Contentions
The Applicant contended that:
·It relies on the evidence of Dr O’Toole.
·The Tribunal should place weight on Dr O’Toole’s opinion as he is a specialist who was engaged to provide an independent medical opinion.
·The SSCSD did not have the benefit of Dr Garcia’s clinical records.
·The Respondent’s Coronary Artery Disease was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned 5 impairment points under Table 1 of the Impairment Tables.
·The SSCSD relied upon the Respondent’s self-reporting in assigning 20 impairment points under Table 1 of the Impairment Tables, however corroborating evidence is required.
·The Tribunal should put greater weight on the evidence of Dr O’Toole in relation to the assistance provided by the Respondent to his father-in-law rather than what the Respondent told the Tribunal at Hearing, as Dr O’Toole’s evidence is independent and was based on what he was told.
·The Respondent’s hypertension and hypercholesterolaemia did not add any additional functional impairment.
·The Respondent’s lumbar and cervical spine conditions were fully diagnosed, fully treated and fully stabilised and can be assigned 5 impairment points under Table 4 of the Impairment Tables.
·The Respondent’s hearing impairment condition was first documented on 20 February 2018 and in the absence of a diagnosis from a specialist during the Relevant Period can not be considered fully diagnosed, fully treated and fully stabilised for the purposes of assigning an impairment rating.
·The Respondent’s headaches were not fully diagnosed, fully treated and fully stabilised during the Relevant Period.
·The Respondent had not met the program of support requirements and based on Dr O’Toole’s opinion did not have a continuing inability to work. As a specialist, Dr O’Toole’s opinion should be given weight. The Applicant relies on its Statement of Facts Issues and Contentions other than in relation to the Respondent’s cervical spine condition.[65]
[65] Exhibit 2, Tribunal Book, A2, Secretary’s Statement of Facts, Issues and Contentions, pages 15-29.
Respondent’s Contentions
The Respondent contended he cannot work and that everything got worse for him after he had the stent inserted. He has always done the right thing and would prefer to be able to work than have to make a claim for DSP.
CONSIDERATION
Based on the evidence before it, the Tribunal does not doubt that the Respondent’s medical conditions have gotten worse since the Relevant Period or that they cause him pain and fatigue. It is clear that the Respondent has adapted to realising his own limitations and undertaking tasks at his own pace. It was clear to the Tribunal that the Respondent’s conditions cause him much frustration and if given the choice he would much prefer to be working than having to interact with Centrelink. The Tribunal however is limited to considering the Applicant’s conditions as they were during the Relevant Period and in this instance that period is almost three years ago, commencing on 17 November 2017 and ending on 16 February 2018. The Tribunal considers that what is not provided in the medical evidence before it is corroborating medical evidence in relation to the Respondent’s functional impairments.
In finding that the Respondent met the DSP requirements, the SSCSD did not have the benefit of the Respondent’s patient notes from the Douglas Family Medical Centre[66] or the report subsequently provided by Dr O’Toole.[67]
[66] Exhibit 2, Tribunal Book, A3, Section 38AA Documents, Documents received under section 196 from Douglas Family Medical Centre, pages 30-85.
[67] Exhibit 2, Tribunal Book, A1, Report of Dr Robin O’Toole, pages 1-14.
Based on the evidence before it the Tribunal accepts that the Respondent’s Coronary Artery Disease, hypercholesterolemia and hypertension conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and that the resulting functional impairments should appropriately be considered under Table 1 of the Impairment Tables. As set out above, Table 1 of the Impairment Tables is used where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina. The introduction to Table 1 sets out that self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.
While the Tribunal has a number of letters and reports before it completed by the Respondent’s treating General Practitioner, Dr Garcia and various specialists that relate to his Coronary Artery Disease, there is no elaboration in relation to the functional impact the condition has on the Respondent beyond references to chest pain, fatigue and shortness of breath. It is not clear what corroborating evidence the SSCSD relied upon in assigning the Respondent 20 impairment points on Table 1 of the Impairment Tables.
In assessing the medical evidence before it and evidence provided at Hearing, the Tribunal accepts the opinion of Dr O’Toole that during the Relevant Period the Respondent’s conditions resulted in a mild functional impact on activities requiring physical exertion or stamina. Noting that the Respondent’s hypercholesterolemia and hypertension are well managed and contribute to the functional impairment caused by his Coronary Artery Disease.
Consequently, the Tribunal finds that the Respondent’s Coronary Artery Disease, hypercholesterolemia and hypertension conditions can be assigned an impairment rating of 5 points on Table 1 of the Impairment Tables.
The Tribunal notes that evidence in relation to the diagnosis and treatment of the Respondent’s osteoarthritis/lumbar spine and cervical spine conditions is limited to comments made in medical reports, his patient notes and physiotherapy. Dr Garcia diagnosed back pain in 2014.[68] There is no direct evidence before the Tribunal from Dr Garcia or the Respondent’s other treating practitioners in relation to the functional impairment resulting from his back conditions. Table 4 of the Impairment Tables as set out above is used where a person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. The Introduction to Table 4 provides that self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.
[68] Exhibit 1, T Documents, T5, page 79, Job Capacity Assessment Report and T27, pages 183 and 185, Medical Certificates.
The Tribunal notes that upon assessment of both the medical evidence and having examined the Respondent, Dr O’Toole provided the opinion that the Respondent’s back condition (encompassing both his lumbar and cervical spine) was fully diagnosed, fully treated and fully stabilised during the Relevant Period and caused a mild functional impact on activities involving spinal function. Dr O’Toole told the Tribunal that he made this assessment giving consideration to the degenerative nature of condition and that it was being managed with conservative treatment.
Given Dr O’Toole is a specialist, the Applicant accepted his opinion and the evidence provided at the Hearing. The Tribunal accepts the view of Dr O’Toole that the Respondent’s osteoarthritis/lumbar spine and cervical spine conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and caused a mild functional impairment under Table 4 of the Impairment Tables.
Consequently, the Tribunal finds that the Respondent’s osteoarthritis/lumbar spine and cervical spine conditions can be assigned an impairment rating of 5 points on Table 4 of the Impairment Tables.
Based on the evidence before it the Tribunal finds that the Respondent’s headaches and hearing loss conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period. As such, the Respondent’s headaches and hearing loss conditions are not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for the conditions.
As the Tribunal has found that the Respondent does not have a total of 20 impairment points, either on one table or cumulatively across multiple tables, there is no need to consider whether the Respondent met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Respondent had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that for the purposes of section 94(1)(b) of the Act, the Respondent’s:
(a)Coronary Artery Disease, hypercholesterolemia and hypertension conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating of 5 points under Table 1 of the Impairment Tables.
(b)Osteoarthritis/lumbar spine and cervical spine conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating of 5 points under Table 5 of the Impairment Tables.
(c)Headaches and hearing loss conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and as such can not be assigned an impairment rating under the Impairment Tables.
(d)Impairments during the Relevant Period do not attract 20 points or more under the Impairment Tables.
As the Tribunal found that the Respondent did not have impairments of 20 points or more under the Impairment Tables it does not need to consider whether the Respondent had a continuing inability work pursuant to section 94(1)(c) of the Act.
The Tribunal finds that the Respondent did not meet the eligibility requirements to be granted DSP during the Relevant Period. This does not mean that Respondent has not met or will not meet the DSP requirements at some point after the Relevant Period being considered in this decision. Any such assessment would be dependent upon the medical evidence provided to support the Respondent’s self-reported symptoms and functional impairments. The Respondent may lodge a new application for DSP with the Respondent to retest his eligibility at any time.
DECISION
The Tribunal sets aside the decision of the SSCSD dated 20 September 2019 and substitutes a decision that the Respondent was not qualified for DSP at the date of his claim on 17 November 2017 or in the 13 weeks thereafter.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
............[SGD]...............................................
Associate
Dated: 23 September 2020
Date of hearing: 14 September 2020 Advocate for the Applicant: Mr Jake Kyranis
Solicitors for the Applicant: Sparke Helmore Lawyers Respondent: By phone
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Standing
-
Statutory Construction
0
3
0