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

[2017] AATA 293

Parkinson and Secretary, Department of Social Services (Social services second review) [2017] AATA 293 (7 March 2017)

Division:GENERAL DIVISION 

File Number:2016/5401           

Re:Ryan Parkinson  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Gordon Hughes, Member

Date:7 March 2017

Place:Melbourne

The Tribunal affirms the decision under review.

………………………………………….
Dr Gordon Hughes, Member

SOCIAL SECURITY - disability support pension – chronic fatigue syndrome and anxiety – condition to be assessed at time of qualification period – whether condition fully diagnosed - where "presumptive diagnosis" by medical practitioner is not evidence of a condition being fully diagnosed - decision affirmed

Legislation

Social Security Act 1991 (Cth) s 94(1)-(2)

Social Security (Administration) Act 1999 Sch 2, s 4(1)

Cases

Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Re Yazdari and Secretary, Department of Social Services [2014] AATA 34

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr Gordon Hughes, Member

7 March 2017

1. The issue before the Tribunal was whether the Applicant met the qualifications for disability support pension (DSP) during the relevant qualification period. 

2. The Applicant's claim for DSP had been rejected by the Respondent on 9 December 2015 on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.  That decision was affirmed by an Authorised Review Officer on 16 May 2016 and by the Social Services and Child Support Division of this Tribunal on 28 September 2016.

   Legislation

3. Section 94 of the Social Security Act 1991 (the Act) provides, relevantly:

   (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;

   …

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)…

   (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.

   Discussion

4. There were two issues before the Tribunal, namely, whether the Applicant had a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables,  and whether the Applicant had a "continuing inability to work" as defined by the Act. 

5. The Applicant contacted Centrelink on 26 August 2015 and lodged a claim for DSP on 8 September 2015.  It was not in dispute that the 13 week qualification period was accordingly 26 August 2015 to 25 November 2015 (Social Security (Administration) Act 1999, Schedule 2, s 4(1)).

6. The Applicant had over a period of time complained of a number of medical conditions.  The Respondent conceded that the Applicant satisfied the requirements of subsection (a) of section 94(1), at least to the extent of chronic fatigue syndrome, fibromyalgia and anxiety. It was not contended by the Applicant that the claim extended to other medical conditions.

7. Having satisfied subsection (a) of section 94(1), it became necessary for the Applicant to satisfy subsection (b) by establishing that he had an impairment attracting at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).

8. The Impairment Tables can only be applied after the person's medical history has been considered, and under s 6(3)(a) of the Impairment Tables a rating can only be assigned if an impairment is classified as permanent.  To be permanent, a condition must be fully diagnosed, fully treated and fully stabilised and must be likely to persist for more than 2 years (s 6(4) of the Impairment Tables). 

9. Section 6(5) of the Impairment Tables identifies factors which the decision-maker must take into account in determining whether a condition is fully diagnosed and fully treated. Section 6(6) identifies factors which will determine whether a condition is fully stabilised. Section 6(7) defines what constitutes reasonable treatment for the purposes of section 6(6) of the Impairment Tables.

10. The relevant period for considering whether the Applicant qualifies for DSP is the time of the application and the subsequent period of 13 weeks.  If the condition has changed since then, it could be the subject of a separate claim: Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Re Yazdari and Secretary, Department of Social Services [2014] AATA 34. See also Re Fanning and Secretary, Department of Social Services [2014] AATA 447;  Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

11. Relevant to the question of whether the Applicant's condition was fully diagnosed during the qualification period, the Applicant had a history of medical treatment involving relevant symptoms from July 2012.  He commenced seeing Dr Zenon Gruba in October 2014.  A report from Dr Gruba, dated 18 February 2015, stated that the Applicant had chronic fatigue syndrome and fibromyalgia.  This was, according to the report, a "presumptive diagnosis" and no further investigations to confirm the diagnosis were foreshadowed.  The relevance of a diagnosis being "presumptive" is that the Applicant's chronic fatigue syndrome had not, in the absence of other medical evidence, been confirmed, either by a specialist or otherwise, as at the subsequent commencement of the qualification period on 26 August 2015.

12. A report from Dr Douglas Gray, consultant rheumatologist, dated 15 March 2016 ultimately confirmed Dr Gruba's diagnosis of chronic fatigue syndrome.  There was also another diagnosis of chronic fatigue, anxiety and depression by Dr Brendan Lloyd, referred to in a report dated 26 April 2016.  These diagnoses came after the conclusion of the qualification period, as did further confirmatory reports from Dr Derek Johns, psychiatrist, dated 13 June 2016 and Dr Oscar Serrallach, general practitioner, on 15 August 2016.

13. The Respondent contended that the Applicant was unable to establish his claim of anxiety.  Dr Stuart Glastonbury, general practitioner, had considered the condition was temporary and likely to improve, and Dr Johns, whilst agreeing that the Applicant was suffering chronic fatigue syndrome, was "unable to detect the presence of mental disorder which would explain Mr Parkinson's symptoms".

14. The Respondent submitted that as only conditions which had been fully diagnosed, treated and stabilised could be considered when applying the Impairment Tables, no impairment points could be assigned to the claimed condition of anxiety.  The Impairment tables could simply not be applied, and accordingly paragraph 94(1)(b) of the Act was not satisfied.  The Tribunal sees no alternative but to accept that conclusion.

15. For much the same reason, the Tribunal concludes that even if the Applicant's chronic fatigue syndrome was fully diagnosed, it was not fully treated or stabilised during the qualification period.  No specialist treatment was received from a rheumatologist until 15 March 2016.  Appropriate treatment was still under consideration, and yet to commence, during the qualification period.  Relevantly, subsequent to the qualification period a Job Capacity Assessment undertaken by a social worker on 8 December 2015, and a Health Professional Advisory Unit opinion provided on 13 May 2016, each concluded that the Applicant's condition was still not fully diagnosed, treated and stabilised.

16. The Tribunal further observes that even if the condition was fully diagnosed, treated and stabilised during the qualification period, the Applicant would not have established an impairment rating of 20 points or more.   To be assessed at 20 points or more under Table 1 of the Impairment Tables, the Applicant was required to establish that his impairment of chronic fatigue syndrome was such that it had a severe functional impact on activities requiring physical exertion or stamina. The examples provided in Table 1 to be illustrative of this impairment are:

    (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).

17. The Applicant acknowledged that he was capable of performing the activities as outlined in paragraphs (i), (ii) and (iii).  He asserted, however, that he was incapable of performing light day to day household activities. The Respondent asserted that evidence in the form of Facebook photographs of the Applicant engaged in outdoor activity in September 2014 suggested he had the capacity to perform light household chores, to which the Applicant responded that whilst he could perform some chores, he would often have an adverse reaction afterwards.

18. Determining the level of functional impact for the purposes of the Impairment Tables is an imprecise science.  The Tribunal was not convinced, however, on the basis of the evidence before it, that the Applicant was incapable of performing light household chores.  In any event, it is not necessary for the Tribunal to decide the point in view of its other findings.  The Impairment Tables do not, in the Tribunal's opinion, apply for the reasons stated above.

19. Given the Tribunal's conclusion that the Impairment Tables do not apply, it is not relevant to consider the question of whether the Applicant had a "continuing inability to work" for the purposes of sub-sections 94(1)(c)(i) and 94(2).

    Decision

20. For the reasons set out above, the Tribunal affirms the decision under review.

1.        

2.       I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of:

Dr Gordon Hughes, Member

...[sgd]....................................................................

Associate

Dated 7 March 2017

Hearing by telephone	31 January 2017
Applicant	By telephone
Solicitors for the Respondent	Sparke Helmore, Mr P Nacion