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

[2016] AATA 268

MQVR and Secretary, Department of Social Services (Social services second review) [2016] AATA 268 (29 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3899
Re	MQVR
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	29 April 2016
Place	Perth

The decision under review is set aside and, in substitution therfor, it is decided that MQVR was qualified to receive Disability Support Pension within the period 12 November 2014 to 12 February 2015.

............[Sgd]..AG Warner..........

Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY -  disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised – whether applicant’s impairments attract 20 points under the Impairment Tables – whether applicant has severe impairment -  continuing inability to work – decision under review set aside

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)

Social Security (Administration) Act 1999 – Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 1 – Table 2 – Table 3 – Table 4 – Table 10 – Table 13

CASES

Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Brigadier AG Warner, Member

29 April 2016

1. MQVR submitted a claim for Disability Support Pension (“DSP”) on 12 November 2014 (T31/66).

2. A Job Capacity Assessment (“JCA”) was conducted on 12 December 2014 and recommended 10 impairment points under the Impairment Tables (T33/105-113). Centrelink subsequently rejected the claim for DSP on 15 December 2015.

3. An Authorised Review Officer (“ARO”) affirmed the decision on 8 February 2015. The ARO assigned a rating of 10 points under Table 10 for fibromyalgia with chronic sacroiliitis, 0 points under Table 2 for the left wrist and 0 points under Table 3 for avascular necrosis right hip (T36/117-122).

4. On 9 April 2015 MQVR applied to the Social Security Appeals Tribunal (“SSAT”) for a review of the decision to reject her DSP claim. From 1 July 2015 the SSAT became the Social Services and Child Support Division of the AAT. Under the transitional provisions of the Tribunals Amalgamation Act 2015, MQVR’s application for review is taken to be an application for AAT first review (“AAT1”).

5. The AAT1 decision was posted on 6 July 2015, and affirmed the Centrelink decision to reject MQVR’s DSP claim. However, AAT1 assigned MQVR 15 points under the Impairment Tables – 10 points under Table 1 for fibromyalgia, avascular necrosis and chronic sacroiliitis and 5 points under Table 2 for shoulder impingement syndrome and repaired left wrist fracture (T2/8-9).

6. MQVR lodged an Application for Review of Decision with this Tribunal on 9 July 2015 (T1/1). The decision under review is the decision made by AAT1 on 25 June 2015, which affirmed the Centrelink decision to reject MQVR’s claim for DSP.

   BACKGROUND

7. MQVR was born in January 1958.

8. MQVR’s medical history and conditions are documented in a series of medical reports produced by a number of medical practitioners in the period 1 May 2003 to 10 November 2014 (T4/33, T5/34, T6/36, T7/37, T8/38, T9/39, T10/41, T11/42, T12/44, T13/46, T14/47, T15/49, T16/50, T17/51, T18/52, T19/54, T20/55, T21/56, T22/57, T23/58, T24/59, T25/60, T26/61, T27/62, T26/63, T29/64, T30/65, T32/94).

9. On 5 March 2015, Dr Digby Cullen, gastroenterologist, issued a medical report on MQVR (T38/123).

10. On 15 January 2016, Dr Cullen provided the Tribunal with a medical report on MQVR (A3).

    ISSUE

11. The issue before the Tribunal is whether MQVR was qualified or became qualified to receive DSP within the period 12 November 2014 (the date of claim) to 12 February 2015 (13 weeks after the date of claim). This depends on whether MQVR satisfied section 94 of the Social Security Act 1991 (“the Act”), in particular:

    (a)Whether MQVR’s impairments were permanent, and if so;

    (b)Whether the impairments attracted an impairment rating of at least 20 points, and if so;

    (c)Whether MQVR had a continuing inability to work because of any such impairment.

    RELEVANT LEGISLATION

12. Section 94 of the Act sets out the qualification criteria for the DSP. It provides that a person is qualified for the DSP if:

    (a)They have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and

    (b)That impairment (or impairments in combination) attracts an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and

    (c)The person has a continuing inability to work (s 94(1)(c)(i)).

13. The Impairment Tables contain rules (“the Rules”) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.

14. An impairment rating can only be assigned if the condition causing that impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).

15. The following must be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated:

    (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 two years (s 6(5) of the Rules).

16. 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 two years, or

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

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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 (ss 6(6) and 6(7) of the Rules).

17. The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If an impairment has no functional impact, then no rating can be assigned (s 6(8) of the Rules).

    EVIDENCE

18. The evidence before the Tribunal comprised:

    ·The “T Documents” (T1-T40, pp1-142, Exhibit R1)

    ·Secretary’s Statement of Facts, Issues & Contentions dated 26 November 2015 (Exhibit R2)

    ·MQVR’s Response to the Secretary’s Statement of Facts, Issues and Contentions undated, received in the Tribunal 4 March 2015 (Exhibit A1)

    ·Addendum to Exhibit A1 (8 pages) undated, received in the Tribunal 8 March 2015 (Exhibit A2)

    ·Medical Report by Dr Digby Cullen dated 15 January 2016 (Exhibit A3)

    ·The oral evidence of the applicant

    CONSIDERATION

19. With respect to her medical impairments, the Tribunal finds that MQVR was a thorough historian and a credible and convincing witness.

20. A JCA was conducted on 3 December 2014 (T33/105-113). In both her written submission (A1) and her sworn evidence, MQVR was highly critical of the JCA report. She submitted that the report contained a number of errors and misquoted statements which she addressed.

    Accepted impairment points

21. AAT1 was satisfied, and the Respondent accepts in these proceedings, that within the claim period MQVR suffered from avascular necrosis, fibromyalgia, and chronic sacroiliitis, and that the impairment resulting from these conditions warrant an impairment rating of 10 points under Table 1 (T2 paragraph 21, R2 paragraph 65). The Tribunal agrees and finds that these conditions attract 10 points under Table 1.

    Upper limb conditions

22. The Respondent accepts that MQVR suffered from a repaired left wrist fracture and that this condition was fully diagnosed, treated and stabilised, however, contends that there is no impairment arising from this condition. The Respondent also accepts that MQVR suffered from shoulder impingement syndrome, but does not accept that the condition was fully diagnosed, treated and stabilised.

23. AAT1 reached a different conclusion, finding that MQVR’s shoulder impingement syndrome was fully diagnosed, treated and stabilised, and that her upper limb function has a mild impairment and assigned 5 points under Table 2. The medical evidence supporting the AAT1 conclusion, and with which this Tribunal agrees, is laid out in the AAT1 decision (T2, paragraphs 22-24).

24. In recommending an impairment rating of 0 points for MQVR’s upper limb conditions, the JCA report stated:

    There is no functional impact on activities using the hands or arms. The client can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty. The client reported that her wrist is fully functional and besides using a squeeze ball as regular exercise, her wrist function is normal.

25. However, it also reported that:

    The client advised that she is unable to bend forward to pick up a light A4 folder placed at knee height. This is confirmed by Dr A Oyenaike who reported difficulty with tasks “requiring physical exertion” (T33/110).  

26. In response, MQVR said that she was unable to manipulate buttons, jewellery clasps or small fiddly tasks requiring the use of both hands. MQVR said that she had told the JCA that she no longer wore watches, earrings or necklaces for this reason. She denied telling the JCA her wrist was fully functional, but did say she used a squeeze ball to lessen stiffening and promote strength. MQVR advised that on the day of the JCA interview she was wearing a hard wrist brace for support and protection as her wrist was badly bruised and swollen, and that this was shown to the JCA assessor (A1/6).

27. In replying to the Respondent’s cross examination regarding her level of difficulty in the preparation of her submissions (A1, A2), MQVR explained that the submissions were completed over a protracted period, a girlfriend assisted with much of the keyboard work, on some days her progress was limited to an hour at a time and on other days she could not do any work, and that because of these difficulties she had sought extensions of time to submit documents.

28. In detailing some of the functional impacts of her upper limb conditions, MQVR told the Tribunal that she did her washing once a fortnight, assisted by her mother. She said that she put the washing in the washing machine and her mother took it out. She said that she could only manage to carry a clothes basket immediately after a cortisone injection when she “felt like superwoman”. MQVR told the Tribunal that she was unable to groom her dog, and she was able to make her bed because she used a lightweight dacron doona suitable for all-year use.

29. Having regard to all the evidence related to MQVR’s upper limb conditions, the Tribunal finds that at the time of her application for DSP, her conditions of repaired wrist fracture and shoulder impingement syndrome were fully diagnosed, treated and stabilised. The Tribunal finds that there is sufficient evidence that these conditions satisfy the descriptors for a mild functional impact on activities using hands or arms, and thus attract 5 impairment points under Table 2 - Upper Limb Function. This is because MQVR has some difficulty with most of the following:

    a.Picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    b.Handling very small objects (e.g. coins);

    c.Doing up buttons; and

    d.Reaching up or out to pick up objects.

    Ulcerative colitis

30. MQVR has suffered from ulcerative colitis since 1989 and has been treated by Dr Digby Cullen, gastroenterologist, since that time (T17/51, T19/54, T20/55, T21/56, T22/57, T26/61, T38/123, A3).

31. In November 2011, Dr Oyenaike identified ulcerative colitis as MQVR’s condition with most impact (T32/97). He recorded that ''This is a chronic progressive disease. Given the protracted nature of the illness it is unlikely to go into full remission” (T32/97). The JCA report noted that MQVR’s symptoms were severe (T33/111).

32. Having regard to the evidence available at the time of its review on 25 June 2015, the AAT1 found, and the respondent contends in the present proceedings, that the ulcerative colitis was fully diagnosed but not fully treated and stabilised (T2/13-16). The AAT1 had regard to a telephone conversation with Dr Cullen on 17 June 2015, and recorded details in its decision as follows:

    MQVR’s ulcerative colitis is not well controlled and she is experiencing a flare up. He said she is at the start of treatment and that, when controlled, most people have minimal problems. He indicated that all treatment options had not been explored and he was hopeful of getting MQVR’s ulcerative colitis under control and into remission. However whether MQVR responds to treatment is uncertain. Dr Cullen said that surgical intervention is used as a treatment when alternative treatments fail. He said MQVR still had a number of non-surgical treatment options available to her.

33. This Tribunal had before it a later medical report by Dr Cullen (A3).  In relation to this later report, the Tribunal notes that relevantly, in Re Elston andAustralian Community Pharmacy Authority (1996) 44 ALD 126, Deputy President DP Breen said, at 128:

    Proceedings before the Administrative Appeals Tribunal are proceedings de novo. It is well established principle that the task of the tribunal is to arrive at the correct and preferable decision and that it is to do so on the material before it. It is inherent in that principle that the material before the tribunal may well be different from the material before the …… determining authority making the reviewable decision. Experience has shown that inevitably it is, often to a marked degree.

34. Dr Cullen’s report provides a medical history of MQVR’s ulcerative colitis, and has regard to section 11(4) of the Rules which requires:

    When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

35. Importantly, Dr Cullen’s report addresses MQVR’s condition at the time of her application, and includes the following statements:

    ·Unfortunately in early 2014 she started having very regular flare ups. When I saw her she was extremely distressed and experiencing more than five bloody motions per day - most resulting in faecal soiling.

    ·At the time of her application MQVR was experiencing flare ups at approximately two monthly intervals. Furthermore it is impossible to predict the frequency and severity of the flare ups however they do seem to increase with age and are often triggered by the treatment of her other chronic conditions.

    ·I performed a colonoscopy in November 2014 and found moderately severe ulcerative colitis.

    ·Treatment is ongoing and consists of anti colitis drug therapy, regular colonoscopies and blood tests. This treatment will most likely be continuing for MQVR’s lifetime (actual drugs used will change from time to time as further research directs).

    ·MQVR has undertaken (and continues to undertake) reasonable treatment for her condition and any further reasonable treatment is unlikely to result in significant functional improvement to enable MQVR to undertake work in the next two years.

    ·Given MQVR’s multiple morbidities - surgery is a last option with a high risk of complications.

    ·I would like to address the symptomology specifically related to MQVR. Whilst many people experience minimal functional impact, there are those for whom the opposite is true. MQVR has a chronic burden of symptomology.

36. Dr Cullen considered the functional impact of MQVR’s ulcerative colitis under Impairment Table 10 - Digestive & Reproductive Function. He opined that there was a severe functional impact, because:

    ·MQVR’s attention and concentration to a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with her condition.

    ·She would be unable to sustain work activity or other tasks for a total of more than two hours a day even with regular breaks due to the symptoms of the condition, and

    ·She would frequently (more than twice per month) be absent from work, education or training activities due to her condition.

37. Dr Cullen also opined the MQVR’s ulcerative colitis met the descriptors for severe functional impact when considered under Table 13 - Continence Function, because:

    ·Her condition may affect the comfort and condition of co-workers, and

    ·She has major leakage from the bowel with enough faecal matter to fully soil her underwear at least weekly.

38. The Tribunal notes section 10(4) of the Rules which states that “… impairment ratings for the same impairment must not be assigned under more than one Table", and considers that Dr Cullen’s opinion in the paragraph above applies equally to descriptor (1)(c) for a severe functional impact under Table 10 - “the person’s condition may affect the comfort or attention of co-workers”.

39. The Tribunal considers that Dr Cullen’s report is consistent with MQVR’s written submissions (A1, A2) and her sworn evidence. Further, MQVR told the Tribunal that her condition and circumstances at the time of her DSP application were described accurately in Dr Cullen’s report.

40. The Respondent submitted that the Tribunal should give less weight to Dr Cullen’s 15 January 2016 report than to the reports before the previous decision makers. The Tribunal disagrees, because:

    ·Dr Cullen is, and has been since 1989, the treating specialist gastroenterologist;

    ·Dr Cullen’s opinion is first hand, rather than another practitioner’s statement of what Dr Cullen may decide to do; and

    ·In doing so, the Tribunal has regard to the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123 , at 25-29, in which the Federal Court affirmed the principle that medical reports that come into being after the relevant period will only be relevant to the extent that they refer to the claimant’s condition during the relevant period.

41. Having regard to all the evidence related to MQVR’s condition of ulcerative colitis, the Tribunal finds that at the time of her application for DSP, this condition was fully diagnosed, treated and stabilised.

42. For the ulcerative colitis to have a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition (and thus attract 20 impairment points under Table 10), at least two of the following descriptors must apply:

    (a)the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

    (b)the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

    (c)the person’s condition may affect the comfort or attention of co-workers; and

    (d)the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

1. The Tribunal concludes that there is sufficient evidence before it to satisfy the first three descriptors above. The Tribunal also considers the fourth descriptor would be satisfied had MQVR been capable of attending work, education or training activities. The Tribunal is satisfied that MQVR’s ulcerative colitis would have precluded such attendance.

2. The Tribunal finds that MQVR’s ulcerative colitis attracts 20 impairment points under Table 10 - Digestive and Reproductive Function.

   Other conditions

3. Dr Oyenaike has recorded that MQVR has the conditions of depression and overactive bladder (T32/103).

4. MQVR told AAT1 that she does not take any medication for her overactive bladder and Dr Oyenaike indicated that the condition caused limited or minimal impact (T2/9). Given the evidence before it, the Tribunal is not satisfied that this condition is fully diagnosed, treated and stabilised.

5. The introduction to Table 5 requires a diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). This requirement is mandatory, and without its satisfaction a rating cannot be assigned under Table 5. There is no evidence before the Tribunal that MQVR’s depression has been diagnosed by a psychiatrist or clinical psychologist. The Tribunal consequently finds that the depression was not fully diagnosed, treated and stabilised during the relevant period.

6. Dr Cullen reported that MQVR has hypothyroidism (T38/123). However, there is no evidence before the Tribunal of any related loss of functional capacity for this condition to attract any impairment points under the Impairment Tables.

7. The Tribunal finds that MQVR’s conditions of depression, overactive bladder and hypothyroidism do not attract any impairment points under the Impairment Tables.

   Continuing inability to work

8. Having found that sections 94(1)(a) and 94(1)(b) of the Act are satisfied, the Tribunal must consider the third requirement for eligibility for DSP, that is whether the person has a continuing inability to work (s 94(1)(c)).This requires the person to be unable to work for at least 15 hours per week within the next two years. The Tribunal notes that because it has found that MQVR has a severe disability, the requirement for a program of support does not apply.

9. The JCA determined that MQVR had a baseline work capacity of 0-7 hours per week, and a capacity for work within 2 years with intervention of 15-22 hours per week (T33/112). However, this assessment did not have regard to impairment arising from MQVR’s ulcerative colitis and upper limb conditions because no impairment points were assigned to these conditions.

10. Dr Cullen, in his evidence regarding work capacity relative to the ulcerative colitis, opines that at the relevant time:

    Any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling MQVR to undertake work in the next 2 years…. She would be unable to sustain work activity or other tasks for a total of more than two hours a day even with regular breaks due to the symptoms of the condition (A3/3).

11. It seems to the Tribunal that without regard to what Dr Oyenaike identified as MQVR’s condition with most impact, and her upper limb conditions, the JCA work capacity assessment is overly optimistic. In these circumstances the Tribunal accepts the opinion of Dr Cullen.

12. Having regard to all the evidence, the Tribunal finds that at the time of her DSP application MQVR had a continuing inability to work, and thus the requirement of section 94(1)(c) of the Act is met.

    CONCLUSION

13. The Tribunal finds that at the relevant time, MQVR had permanent medical conditions which attract 35 impairment points in total. MQVR’s ulcerative colitis attracts 20 points under Table 10, her avascular necrosis/fibromyalgia/chronic sacroiliitis attracts 10 points under Table 1, and her upper limb conditions attract 5 points under Table 3. Because the ulcerative colitis attracts 20 points under a single table, MQVR is considered to be severely disabled. MQVR also satisfies the continuing inability to work requirement.

    DECISION

14. The Tribunal sets aside the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 25 June 2015 and, in substitution therefor, decides that MQVR was qualified to receive DSP within the period 12 November 2014 to 12 February 2015.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

.......[Sgd]..A Tran..............

Administrative Assistant

Dated 29 April 2016

Date(s) of hearing	7 April 2016
Applicant	By telephone (self-represented)
Representative for the Respondent	Ms A Wong
Solicitors for the Respondent	Mills Oakley Lawyers