Orlando and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4468
•4 November 2019
Orlando and Secretary, Department of Social Services (Social services second review) [2019] AATA 4468 (4 November 2019)
Division:GENERAL DIVISION
File Number(s):2019/2054
Re:Richard Orlando
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Belinda Pola, Senior Member
Date:4 November 2019
Place:Brisbane
The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Belinda Pola
Catchwords
SOCIAL SECURITY – disability support pension – DSP – condition fully diagnosed, fully treated and fully stabilised – whether the Applicant’s impairments attract 20 points or more under the Impairment Tables - Table 15: Functions of Consciousness - decision under review affirmed
Legislation
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security Act 1991 (Cth)Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810
Fanning and Secretary, Department of Social Services [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404REASONS FOR DECISION
Belinda Pola, Senior Member
4 November 2019BACKGROUND
1. On 27 March 2018, the Applicant, Mr Richard Orlando lodged a claim for Disability Support Pension (‘DSP’) with the Department of Human Services (‘the Department’)[1].
[1] Exhibit 1, T13, pages 68 to 97.
2. On 15 May 2018 the Department made a decision to reject the Applicant’s claim for DSP[2]. This decision was reviewed and affirmed by an Authorised Review officer (‘ARO’) on 17 September 2018[3].
[2] Exhibit 1, T17, pages 103 and 104.
[3] Exhibit 1, T19, pages 106 to 110.
3. On 15 November 2018, the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (‘Tribunal’) to review the Department’s decision to reject his claim for the DSP[4]. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim on 8 March 2019[5].
[4] Exhibit 1, T20, pages 111 and 112.
[5] Exhibit 1, T2, pages 3 to 9.
4. The Applicant applied to the Tribunal for a second review of this decision on 15 April 2019[6].
[6] Exhibit 1, T1, pages 1 and 2.
JURISDICTION
5. This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
6. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), provides that:
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
7. The Tribunal has jurisdiction to hear this application.
ISSUES
8. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 27 March 2018, and ending 13 weeks later on 26 June 2018.
9. For the purposes of this application and on the evidence submitted and provided orally by the Applicant to the Tribunal, it is clear the Applicant suffered impairments during the qualification period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’).
10. At the hearing the Applicant requested that the Tribunal focus on his epilepsy condition in relation to his DSP application, although the Tribunal has had regard to the other conditions in his original application, all conditions in the application are listed below[7]:
[7] Exhibit 1, T13, page 93.
“Epilepsy – Grand MAL Permanent
Cavernoman Haematoma
Brain Bleeds
Memory Loss
Blackouts
Hepatitis C”
11. The Applicant’s listed conditions of “Epilepsy – Grand MAL Permanent, Cavernoman Haematoma, Brain Bleeds, Memory Loss, Blackouts”, for the purposes of this Decision have been treated as “Epilepsy condition” as they are related.
12. In regards to the Applicant’s condition of “Hepatitis C”, based on the evidence presented[8], as the condition is deemed to be temporary[9] and the Applicant has received treatment and is likely to show considerable improvement within the next two years; the Tribunal is unable to assign an impairment rating as the condition is not permanent.
[8] Exhibit 1, T10, page 60; and T12, page 63.
[9] Exhibit 1, T10, page 60, Dr Vahidy notes, “This condition is temporary. Prognosis: likely to show considerable improvement within 2 years”.
13. On the basis of evidence submitted before the Tribunal, the Tribunal is satisfied that the Applicant’s epileptic condition was permanent; and fully diagnosed, fully treated and fully stabilised in the qualification period[10], with reference to evidence as later outlined in this Decision. The Respondent did not contend otherwise[11].
[10] The qualification period is outlined in paragraphs 33 to 35 of this Decision.
[11] Exhibit 3, page 6, paragraph 31.
14. The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:
(i)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the qualification period; and
(ii)If so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
15. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
16. To be medically qualified for a DSP a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
17. Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
18. It is the Tribunal’s role to stand in the shoes of the original decision-maker[12] and determine whether the decision was the correct or preferable one on the material before the Tribunal[13]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[12] Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 [27].
[13] Bowen CJ and Deane J in Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
19. Section 6 of the Determination provides that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[14]. Further, the Impairment Tables in the Determination 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[15].
[14] Section 6(1) of the Determination.
[15] Section 6(2) of the Determination.
20. An impairment rating may only be assigned to an impairment if[16]:
[16] Section 6(3) of the Determination.
(a) the person’s condition causing the impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
21. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[17]:
[17] Section 6(4) of the Determination.
· be fully diagnosed by an appropriately qualified medical practitioner;
· be fully treated;
· be fully stabilised; and
· be more likely than not, in light of available evidence, to persist for more than 2 years.
22. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[18]:
[18] Section 6(5) of the Determination.
(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.
23. A condition is considered fully stabilised if[19]:
[19] Section 6(6) of the Determination.
(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. Reasonable treatment is a treatment that[20]:
[20] Section 6(7) of the Determination.
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
25. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
26. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
27. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
28. While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
29. As previously detailed in paragraph 15 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a ‘continuing inability to work’. Section 94(2) of the Act requires that:
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
30. A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is 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.
31. Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
32. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).
QUALIFICATION PERIOD
33. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the qualification period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[21].
34. For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 27 March 2018[22], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 26 June 2018.
35. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[23].
CONSIDERATION
[21] Part 2, clause 4(1)(d) of the Administration Act.
[22] Exhibit 1, T13, pages 68 to 97.
[23] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014) [31].
The Application was heard in Brisbane on 15 October 2019, with the Applicant appearing in person before the Tribunal, with the Applicant’s ex-wife (Mrs Susanne Orlando) representing the Applicant and appearing as a witness in proceedings before the Tribunal. The Respondent was represented in person by Mr Ben Dube.
The Tribunal considered oral submissions made by both the Applicant, the Respondent, and Mrs Orlando in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
As explained earlier in this Decision, the focus of the hearing was on the Applicant’s epileptic condition. Evidence submitted to the Tribunal from the Applicant’s current treating neurologist, Dr Kee Meng (Meng) Tan (referred to as Dr Tan for the remainder of this Decision), included a:
·Letter of 18 August 2017 for a clinic visit of 15 August 2017 (Dr Cheng-Liang, Terence, Chou under the supervision of Dr Tan), reported, “The frequency of his epilepsy disorder is around 3-4 generalized episodes every year initially; there were several focal episodes, with automatism, staring and bizarre behaviour, happened intermittently between the generalized onsets. Situation has worsened since 2016 and he had generalised epilepsy almost once every month. Tegretol was titrated to 200mg-400mg in June and 400mg BD in November, but the control seemed not to be satisfactory. According to Richard’s wife, he had the compliance problem. The epilepsy recurrence kept aggravating and, in this mid-July, he suffered from 4 generalised episodes in 2 days which revealed nocturnal preference. The latest ones are on 11 August and 13 August. Latest MRI (28 June 2017): There is a 6.5mm lesion with associated blood products in the left medial temporal lobe inferior to the hippocampal complex. The MR features are highly suggestive of a cavernoma”[24].
·Final Report of 19 December 2017 for a clinic visit of 18 December 2017, diagnosing, “Temporal lobe epilepsy secondary to left temporal cavernous haemangioma”[25].
·Final Report of 26 April 2018 for a clinic visit of 24 April 2018, reporting, “On review of his seizure history, it appears that he has never had a sustained period of seizure control, apart from approximately 2 years from 2014 to 2016. I am therefore pessimistic about his chances of achieving meaningful seizure freedom in future. Nevertheless, I have recommended an increased dose of levetiracetam and recommencement of carbamazepine and I shall see him again in 4 months”[26].
·Letter of 28 February 2019, reported as at 27 March 2018, “Richard has been my patient since 15 August 2017. He has drug resistant focal epilepsy since 2009 and has seizures with impaired awareness every 1-2 days despite taking multiple medications. According to my clinical notes, I would judge that as of 27 March 2018, his epilepsy was at that time fully diagnosed, treated and stabilised. Further, I would judge that as of 27 March 2018, he would most likely have been able to work 15 hours per week. This may have been burdensome due to the unpredictable occurrence of seizures and the inability to drive a motor vehicle, but not implausible”[27].
[24] Exhibit 2, ST6, pages 108 and 109.
[25] Exhibit 1, T9, page 58.
[26] Exhibit 1, T14, page 98.
[27] Exhibit 1, T23, page 115. Evidence relates to medical condition during the qualification period, consideration was given by the Tribunal on this basis, refer to Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28].
Prior to the Applicant moving to Queensland, he was receiving treatment for his condition in Victoria, with the following extracts from a letter provided by the Applicant’s previous neurologist (unedited):
·Letter from Dr Jayantha S Rupasinghe Consultant Neurologist of 7 July 2016, reporting “Richard’s first epileptic seizure was on 10/01/09. He presented following a generalised seizure and his MRI scan revealed a small bleed from an intracranial cavenoma. He was managed conservatively with antiepileptic medication. He was commenced on Tegretol CR 200mg twice a date with good control of seizures until 2013. As per the detail provided by the paramedics on 04/06/16 at about 9.20am he was witnessed by the by stander to appear “asleep” at the wheel on the opposite side of the road patient then witnessed to veer across the road and crash head on in to a tree, major damage to the car, airbags deployed. He was assisted from the car by stander and off duty ED doctor who reported patient to be OCS14, initially with no recollection of the incident….Following that motor vehicle accident (04/06/16) his driving licence was suspended. According to VicRoads medical guidelines…”[28].
[28] Exhibit 2, ST6, pages 102 and 103.
On the basis of evidence submitted to the Tribunal and outlined in in the above paragraphs of this Decision by Dr Tan, and Dr Rupasinghe; the Tribunal is satisfied that the Applicant’s epilepsy condition is fully diagnosed, fully treated and fully stabilised during the qualification period in accordance with the Determination.
The Tribunal now has to determine an Impairment Rating for the epilepsy condition.
The relevant Impairment Table for the Applicant’s epilepsy condition in the Determination is Table 15 – Functions of Consciousness[29]. The Respondent has contended that the Applicant’s epilepsy condition should attract a moderate rating of 10 points (and not a severe rating of 20 points) under this Impairment Table during the qualification period[30].
[29] The Determination, pages 61 to 65.
[30] Exhibit 3, page 7, paragraph 35.
For ease of comparison between these two Impairment Ratings within the Determination, the Tribunal has produced a comparison table in Annexure 2 of this Decision. The difference in relation to the moderate versus the severe descriptions in Table 15 – Functions of Consciousness relate to[31]:
·the frequency of the Applicant’s episodes of involuntary loss of consciousness or the frequency and duration of the Applicant’s episodes of altered state of consciousness; and
·whether the Applicant is able (moderate) or unable (severe) to perform many activities of daily living between episodes; and
·whether the Applicant is unlikely to (moderate) or cannot (severe) obtain a driver’s licence on medical grounds and may have (moderate) or has (severe) other safety-related restrictions on activities; and
·whether the Applicant is not able to attend work, education or training activities on a full-time basis and is restricted due to safety issues in the work-related activities that they can undertake (moderate); or whether the Applicant is unable to attend work, education or training activities, for at least 15 hours per week (severe).
[31] The Determination, pages 63 and 64.
The Tribunal will firstly assess the frequency with which the Applicant experienced seizures during the qualification period. Excerpts of submitted evidence have been included below[32]:
[32] Refer also to paragraph 36 and the first point.
·Robina Hospital Emergency Department Report of 24 November 2017 in relation to an admission on 2 July 2017, “INCREASED FREQUENCY OF SEIZURES- 4X SEIZURES 2/7”, and “Generally having 3-4 per week but can fluctuate, some weeks not have any. 1 last mid-week, 3 over weekend – 2 on Sat, 1 on Sunday”[33].
[33] Exhibit 2, ST6, pages 127 and 133.
·Letter of 18 August 2017 for a clinic visit of 15 August 2017 (Dr Chou under the supervision of Dr Tan), “The frequency of his epilepsy disorder is around 3-4 generalised episodes every year initially; there were several focal episodes, with automatism, staring and bizarre behaviour, happened intermittently between generalized onsets. Situation has worsened since 2016 and he had generalised epilepsy almost once every month…The epilepsy recurrence kept aggravating and, in this mid-July, he suffered from 4 generalised episodes in 2 days which revealed nocturnal preference. The latest ones are on 11 August and 13 August”[34].
[34] Exhibit 2, ST6, page 108.
·Letter of 19 December 2017 for a clinic visit of 18 December 2017 by Dr Tan, “I note that he had further seizures in mid-October associated with striking his head on the ground and then again in late November”[35].
[35] Exhibit 1, T9, page 58.
·Letter of 13 February 2018 for a clinic visit of 20 December 2017 by Dr Tan, “I reviewed Richard in the Neurology Clinic this afternoon. I note that he had further seizures in mid-October associated with striking his head on the ground and then again in late November”[36].
[36] Exhibit 2, ST6, page 110.
·Employment Services Assessment Report of 26 February 2018, Occupational Therapist, “The client continues to have 3 seizures a week and this is expected to continue whilst he is on hepatitis C treatment and unable to have Tegretol concurrently”[37].
·Letter of 28 February 2019, reported as at 27 March 2018, “Richard has been my patient since 15 August 2017. He has drug resistant focal epilepsy since 2009 and has seizures with impaired awareness every 1-2 days despite taking multiple medications. According to my clinical notes, I would judge that as of 27 March 2018, his epilepsy was at that time fully diagnosed, treated and stabilised. Further, I would judge that as of 27 March 2018, he would most likely have been able to work 15 hours per week. This may have been burdensome due to the unpredictable occurrence of seizures and the inability to drive a motor vehicle, but not implausible”[38].
·Letter of 26 April 2018 for a clinic visit of 24 April 2018 by Dr Tan, “He reports 6 seizures in the last 4 months… On review of his seizure history, it appears that he has never had a sustained period of seizure control, apart from approximately 2 years from 2014 to 2016. I am therefore pessimistic about his chances of achieving meaningful seizure freedom in future”[39].
[37] Exhibit 1, T12, page 65.
[38] Exhibit 1, T23, page 115. Evidence relates to medical condition during the qualification period, consideration was given by the Tribunal on this basis, refer to Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28].
[39] Exhibit 1, T14, page 98.
The Tribunal further notes the Applicant has required hospitalisation as a result of his seizures with reference to hospital reports as outlined in the above paragraph of this Decision.
From the available evidence it is clear the Applicant has experienced an altered state of consciousness at least once per week during the qualification period (with specific reference to Dr Tan’s letter of 28 February 2019 outlined in paragraph 44 of this Decision). On the available evidence the Tribunal is satisfied that the Applicant meets (1)(a)(ii)(A) and (B) of the severe Impairment Rating description for Table 15 – Functions of Consciousness of the Determination[40]. As the Applicant meets (1)(a)(ii)(A) and (B) of the severe Impairment Rating description, there is no requirement to meet (1)(a)(i)(A) and (B) of the remaining test, as the Applicant is only required to meet one or the other.
[40] The Determination, page 64.
The Tribunal must next assess whether the Applicant is “unable to perform many activities of daily living between episodes” in accordance with the severe Impairment Rating description for Table 15 – Functions of Consciousness of the Determination. It is at this point that the Tribunal refers to the evidence presented in Exhibit 5, where on 28 May 2019, Dr Tan completed a form on behalf of the Applicant. Dr Tan indicated that the Applicant as at 15 August 2017 met “20” points in relation to Table 15 – Functions of Consciousness of the Determination (or the severe functional impairment description). On the form, Dr Tan was asked “Please give some detail of how your patient’s symptoms affecting their consciousness cause them to meet the criteria in each of the applicable descriptors”, with Dr Tan writing, “(1) (a)(ii) (b) (c) (d) meets these criteria” (or the severe functional impairment description)[41]. There was no further explanation provided from Dr Tan as to how the Applicant was unable to perform many activities of daily living between episodes.
[41] Exhibit 5, page 5.
The Tribunal heard evidence from the Applicant and his ex-wife (Mrs Orlando) as to how his epilepsy condition impacts on his day to day living. Evidence provided to the Tribunal was consistent with that previously provided to the SSCSD of this Tribunal[42]. In his evidence to the Tribunal the Applicant gave examples as to how his daily living is impacted by the risk of a seizure, as he is:
· unable to have a bath, and unable to shower without someone being present in his home;
· unable to use a stove top to prepare meals and cooks with a microwave; and
· required to be accompanied when he leaves his home and is unable to take public transport unaccompanied (as a side effect from his seizures is that he is unaware of his behaviour for a 10 to 15 minute window after a seizure and has a tendency of violent and abusive behaviour).
[42] Exhibit 1, T2, pages 3 to 9.
Part 2, s8(1) of the Determination[43] provides that:
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
[43] The Determination, page 9.
The introduction to Table 15 – Functions of Consciousness within Part 3 of the Determination provides that[44]:
·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:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. neurologist, endocrinologist or physician) confirming diagnosis of conditions associated with episodes of loss of or altered state of consciousness (e.g. epilepsy, diabetes mellitus, transient ischaemic attacks, some forms of migraine);
oassessments or reports from practitioners specialising in the treatment and management of these conditions, including neurologists, endocrinologists, clinical nurse consultants or nurse practitioners specialising in diabetes management.
[44] The Determination, page 61.
The Tribunal notes that Dr Tan had earlier indicated in a letter of 28 February 2019, that as at 27 March 2018 (during the qualification period), the Applicant “would most likely have been able to work 15 hours per week, and that this may have been burdensome due to the unpredictable occurrence of seizures and the inability to drive a motor vehicle, but not implausible”[45]. The Tribunal also refers to Dr Tan’s form of 15 August 2017 that the Applicant met the descriptor of a severe Impairment Rating in Table 15 – Functions of Consciousness in the Determination[46], without further explanation.
[45] Exhibit 1, T23, page 115.
[46] Exhibit 5, page 4.
The evidentiary threshold that the Tribunal is bound to follow for the allocation of an Impairment Rating as to whether the Applicant is “unable to perform many activities of daily living between episodes” is clear. There is no corroborating evidence before the Tribunal within the qualification period from a medical specialist which verifies the oral evidence provided by the Applicant in regard to the examples heard by the Tribunal during the qualification period. On this basis the Tribunal finds that the Applicant does not meet (1)(b) of the severe Impairment Rating description for Table 15 – Functions of Consciousness of the Determination[47].
[47] The Determination, page 64.
As the Applicant did not meet (1)(b) of the severe Impairment Rating description for Table 15 – Functions of Consciousness of the Determination, the Tribunal will now consider the moderate Impairment Rating for 15 – Functions of Consciousness of the Determination.
The Tribunal is satisfied that the Applicant has met (1)(a)(ii), (A), (B), and (C) of the moderate Impairment Rating for 15 – Functions of Consciousness of the Determination[48], on the basis of the letter by Dr Tan of 28 February 2019, outlined in paragraph 44 of this Decision. As the Applicant meets (1)(a)(ii)(A), (B) and (C) of the moderate Impairment Rating description, there is no requirement to meet (1)(a)(i)(A) and (B) of the remaining test, as the Applicant is only required to meet one or the other.
[48] The Determination, page 63.
The Tribunal is satisfied that the Applicant has met (1)(b) of the moderate Impairment Rating description for Table 15 – Functions of Consciousness of the Determination, that the Applicant “is able to perform many activities of daily living between episodes” [49], on the basis that outside of any visits or occasional assistance Mr Orlando may receive during the week, he is carrying on with his own daily living.
[49] The Determination, page 63.
The Tribunal was presented with evidence that the Applicant had previously lost his licence on medical grounds in the State of Victoria[50], in addition to evidence from medical specialists and treating doctors that the Applicant was not to drive in the period leading up to and during the qualification period[51]. The Tribunal is satisfied that the Applicant has met (1)(a)(ii), (b), and (c) of the moderate Impairment Rating description for Table 15 – Functions of Consciousness of the Determination, that the Applicant “is unlikely to be granted a drivers licence and may have other safety-related restrictions on activities” [52].
[50] Exhibit 6.
[51] Exhibit 1, T5, page 54; Exhibit 1, T12, page 66; Exhibit 2, ST8, page 282; Exhibit 2, ST8, page 286; Exhibit 2, ST8, page 344.
[52] The Determination, page 63.
The Tribunal is satisfied the Applicant has met 1(d) of the moderate Impairment Rating description for Table 15 – Functions of Consciousness of the Determination, that the Applicant “is not able to attend work, education or training activities on a full-time basis and is restricted due to safety issues in the work-related activities that they can undertake”, on the basis of the following submitted evidence in the period prior to and during the qualification period:
·Letter of Dr Jayantha S Rupasinghe Consultant Neurologist of 7 July 2016, reporting “As per Richard, he believes that his non-compliance on the anti-epileptic medication was the main reason for the seizure recurrence. He said he was quite busy with his job as a self-employed painter. He has been compliant on medication since this accident. The risk factors were sleep deprivation, and missing medication”[53].
·Employment Services Assessment Report of 26 February 2018, “Baseline Work Capacity: 8-14 hours per week”, and, “Capacity for work within 2 years with Intervention Work capacity: 15-22 Hours per week”[54].
·Letter of 28 February 2019, reported as at 27 March 2018, “Richard has been my patient since 15 August 2017. He has drug resistant focal epilepsy since 2009 and has seizures with impaired awareness every 1-2 days despite taking multiple medications. According to my clinical notes, I would judge that as of 27 March 2018, his epilepsy was at that time fully diagnosed, treated and stabilised. Further, I would judge that as of 27 March 2018, he would most likely have been able to work 15 hours per week. This may have been burdensome due to the unpredictable occurrence of seizures and the inability to drive a motor vehicle, but not implausible”[55].
[53] Exhibit 2, ST6, page 102 and 103.
[54] Exhibit 1, T12, page 64.
[55] Exhibit 1, T23, page 115. Evidence relates to medical condition during the qualification period, consideration was given by the Tribunal on this basis, refer to Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28].
The Tribunal is satisfied that the Applicant has met the criteria outlined in 1(a)(ii)(A), (B) and (C), 1(b), 1(c) and 1(d) of the moderate Impairment Rating as per the description outlined in Table 15 – Functions of Consciousness of the Determination in the qualification period. Accordingly the Applicant is assigned 10 points.
As previously mentioned in this Decision the Tribunal is unable to assign an impairment rating to the Applicant’s condition of “Hepatitis C”, as the condition is deemed to be temporary with the Applicant likely to show considerable improvement within the next two years.
The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the qualification period, and therefore does not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
…………[sgd]………………
Associate
Dated: 4 November 2019
Date of hearing: 15 October 2019
Applicant: In Person (representation from Mrs Susanne Orlando)
Solicitor for Respondent: Mr Ben Dube
Sparke Helmore‘Annexure 1 – Exhibit Register’
Exhibit
Number
Description
1
Section 37 T Documents received 14 May 2019 (paged 1 to 151)
2
Supplementary T Documents dated 6 September 2018 (paged 1 to 358)
3
Secretary’s Statement of Facts and Contentions dated 4 September 2019 (paged 1 to 16)
4
Attachments to Secretary’s Statement of Facts and Contentions (paged 1 to 18)
5
Applicant’s email to AAT of 2 July 2019 (6.20pm) (paged 1 to 5)
6
Letter From Vicroads dated 15 August 2016 (2 pages)
‘Annexure 2 – Comparison of moderate and severe Impairment Rating from Table 15 – Functions of Consciousness in the Determination[56]’
[56] The Determination, pages 63 and 64.
10 There is a moderate functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity. 20 There is a severe functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity. (1) The person: (1) The person: (a) either: (a) either: (i) has episodes of involuntary loss of
consciousness:
(i) has episodes of involuntary loss of consciousness: (A) which occur more than twice each year but not every month; and (A) which occur at least once each month; and (B) which require the person to receive first aid measures and occasionally emergency medication or hospitalisation; or (B) which require the person to receive first aid measures and may require emergency medication or hospitalisation; or (ii) has episodes of involuntary altered state of consciousness: (ii) has episodes of altered state of consciousness: (A) which occur at least once per month; and (A) which occur at least once per week; and (B) which are less than 30 minutes in duration; and (B) during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and (C) during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and (b) is able to perform many activities of daily living between episodes; and (b) is unable to perform many activities of daily living between episodes; and (c) is unlikely to be granted a driver’s licence and may have other safety-related restrictions on activities; and (c) cannot obtain a driver’s licence on medical grounds and has other safety-related restrictions on activities; and (d) is not able to attend work, education or training activities on a full-time basis and is restricted due to safety issues in the work-related activities that they can undertake. (d) is unable to attend work, education or training activities, for at least 15 hours per week.
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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