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

[2019] AATA 2216

Parley and Secretary, Department of Social Services (Social services second review) [2019] AATA 2216 (26 July 2019)

Division:GENERAL DIVISION

File Number:           2018/2104

Re:Terrance Parley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:26 July 2019

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – eligibility for disability support pension – lower back damage and sciatica nerve damage – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – applicant unable to satisfy the qualification criteria under s 94 of Social Security Act 1991 – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Sch 2, s 42

Social Security Act 1991 (Cth) s 94

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

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member

26 July 2019

INTRODUCTION

1. The Applicant, Mr Terrance Parley, lodged a claim for the Disability Support Pension (DSP) on 14 February 2017 on the basis of Parkinson’s disease, lower limb deficiencies and depression.

2. The claim was rejected by the Department of Social Services (the Department) on 20 June 2017 on the grounds that the Applicant did not have an impairment rating of 20 points or more.

3. Mr Parley sought an internal review of the decision rejecting his claim which was subsequently affirmed by an Authorised Review Officer (ARO).

4. The Applicant had the matter reviewed by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) where the decision was again affirmed in October 2017.

5. In the meantime, Mr Parley had made another application for the DSP and a decision was made to grant Mr Parley DSP in September 2017.

6. In April 2018 Mr Parley made an application to the General Division of the Administrative Appeals Tribunal for a review of the decision to reject his original DSP claim.

7. The application was heard by the Tribunal in Sydney on 11 June 2019. Mr Parley attended the hearing and provided oral evidence in person; he did not have legal representation but was supported by a friend, Ms Sheldeen Cameron, at the hearing.

8. For the reasons that follow, the decision under review is affirmed.

   Background

9. Mr Parley was diagnosed with Parkinson’s disease in 2012.

10. He testified at the hearing where he presented as a proud and self-reliant individual who had experienced a difficult and traumatic period prior to making the application for the DSP.

11. In January 2015 Mr Parley’s lost his partner suddenly. Mr Parley worked as a bricklayer until August 2016 when he ceased working as a result of his Parkinson’s disease. He was also experiencing challenging financial circumstances at the time.

12. In February 2017 Mr Parley attempted suicide and presented to his General Practitioner Dr David Keegan.

13. In his testimony Mr Parley said that he stayed most of the day of his suicide attempt under observation at Dr Keegan’s clinic where he was assisted by Dr Keegan and the nurses at the practice.

14. Mr Parley testified that his financial problems were exacerbated around this time because he had applied for Newstart allowance in September 2016 but Centrelink had not advanced the claim.

15. Mr Parley was assisted at this time by Dr Keegan to contact Centrelink and to make the application for DSP.

16. Mr Parley says that Centrelink had ‘lost’ part of his September 2016 Newstart application but to its credit Centrelink was able to rectify this and arrange back-pay to the date of application.

    ISSUES

17. The issues to be determined by the Tribunal are:

    (a)Does Mr Parley have a physical, intellectual or psychiatric impairment?

    (b)What impairment ratings do his conditions attract?

    (c)If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

    RELEVANT LEGISLATION

    Qualification for Disability Support Pension:

18. To qualify for DSP, Mr Parley must satisfy the criteria in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act), which requires him to show he has a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (the Impairment Tables); and a continuing inability to work as defined in the Act.

19. For his application to succeed, the Applicant had to satisfy these criteria on the date of his claim, being 14 February 2017, or within the following 13 weeks, that is 16 May 2017, pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the qualification period).

    Rules for assigning impairment ratings:

20. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

21. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

22. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

23. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

24. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

    CONSIDERATION

    Issue – Does Mr Parley have a physical, intellectual or psychiatric impairment?

25. The Secretary concedes, and on the basis of the evidence before it the Tribunal agrees, that Mr Parley has a medical condition that causes impairment, and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

    Issue – What impairment rating do Mr Parley’s conditions attract?

26. The Applicant’s claim for DSP was made on the basis of his Parkinson’s Disease, severe depression, lower limb deficiencies and cellulitis. I will begin by considering Mr Parley’s Parkinson’s Disease.  

    Parkinson’s disease

27. Mr Parley was diagnosed with Parkinson’s disease in 2012 and this diagnosis is confirmed in a letter from his consultant neurologist Dr Crimmins of 26 February 2013[1] in which he notes that ‘Rapid alternating movements were impaired primarily down the left but one could see the impairment also beginning on the right’.

    [1] T-documents, p. 92

28. In applying the Impairment Tables in the Job Capacity Assessment Report[2] the Assessor writes in reference to Mr Parley’s Parkinson’s disease:

    While it is recognised that the customer’s condition is fully diagnosed, optimally treated and stabilised, objective evidence of the degree of the customer’s impairment was not available for the current assessment and therefore an accurate rating could not be applied on the tables. Due to this, an impairment rating of 0 points was allocated.

    [2] T-documents, p. 144

29. At the hearing Mr Parley was asked about his condition at the time of the application and during the relevant period.

30. Mr Parley said that he was struggling with walking and his tremor was ‘bad’. He also said that as a ‘proud’ person he was prone to downplaying his symptoms when asked about them, including by medical professionals.

31. He said that given he only recently became aware of the Impairment Tables and that had he known about their existence earlier he would have detailed his ‘worst day’, not his ‘best day’, particularly as the ‘bad days’ outnumbered the good.

32. Mr Parley told the Tribunal that on his ‘worst days’ during the qualification period, he was unable to walk more than 100 metres and he experienced shortness of breath and fatigue. He said that at about that time he had begun to experience issues maintaining continence on occasion and had ceased driving.

33. Mr Parley also testified that during the qualification period he was experiencing Parkinson’s disease symptoms primarily on his left-hand side and particularly his left leg, with occasional symptoms on the right-hand side of his body.

34. On 27 May 2016 Mr Parley saw Dr Crimmins again. Dr Crimmins wrote following the consultation:

    Since last being seen Terrance has struggled with his PD [Parkinson’s disease] with a definite wearing off effect.

35. Professor Crimmins notes the Applicant’s medications as ‘Sifrol ER 1.5mg daily, Amantadine 100mg tds, Madopar 125mg tds’ and recommends Mr Parley take his medications three times daily to combat the ‘definite wearing off effect’.

36. Unfortunately for the Tribunal and earlier decision makers considering Mr Parley’s claim, there is limited corroborating evidence about Mr Parley’s Parkinson’s Disease symptoms and its progression which was generated during or immediately prior to the qualification period.

37. Mr Parley contends that he did not know of the existence of Impairment Tables when he made his claim for DSP, and that if had known he would have sought to provide more detailed medical reports. As mentioned previously, he would have been more forthcoming in detailing the symptoms of his condition and the impact they were having on his health and daily living when dealing with his doctors.

38. Mr Parley has sought to address these matters by providing the Tribunal with documents, notably from Dr Crimmins, which address his condition during the qualification period retrospectively.

39. It is important and appropriate to clarify how the Tribunal considers evidence of this nature.

40. The Tribunal’s role, standing in the shoes of the original decision-maker, is to consider a matter afresh. This would generally allow the Tribunal to consider evidence not before the original decision maker. As stated by Kirby J in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, at [43]:

    ... the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.

41. In Fanning and Secretary Department of Social Services [2014] AATA 447, DP Handley says at [31]:

    In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

42. In [5] I noted that the Applicant was successful in a subsequent claim for DSP. Of relevance is Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, where the Tribunal stated at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

43. In a letter dated 27 November 2018 Dr Crimmins states:

    [The Applicant] has quite significant Parkinson’s disease and at present he is totally and permanently disabled… All these diagnoses were present back in 2017 when I first did his initial letter for application for the Disability Support Pension. At that stage his condition was extreme as well. Once again, he had extreme difficulty with walking, balance, coordination and participating in any occupation role. Unfortunately, his condition continues to deteriorate.

44. In a subsequent letter dated 21 March 2019 Dr Crimmins is more explicit again:

    [Mr Parley] has moderately severe Parkinson’s disease…. I believe has severe functional impact on activities … I doubt that Mr Parley’s disease has progressed further since February 2017 and I do believe, even back then his condition was severe enough to label him as having severe impact on functional ability.

45. I accept that Mr Parley was unaware of the existence of Impairment Tables. I also accept his contention that he preferred to take a stoic approach regarding his condition, even when dealing with medical practitioners, because he does not want ‘people to feel sorry’ for him. 

46. Nonetheless, the Tribunal must make a decision on his conditions during the qualification period based on the facts and evidence before it and with respect to the principles set out above in [39]-[42].

47. Mr Parley testified that during the qualification period he was able to care for himself, dress himself, prepare basic meals, do his own laundry wash dishes, shopping and reluctantly drive a vehicle if required.

48. I must also consider the fact that Mr Parley’s medication was increased significantly following the qualification period. Noted above at [35] on 27 May 2016 Dr Crimmins confirmed that Mr Parley was taking ‘Sifrol ER 1.5mg daily, Amantadine 100mg tds, Madopar 125mg tds’ to treat his Parkinson’s disease[3]. The same medication regime was in place on 30 August 2016 and is detailed in a subsequent letter from Dr Crimmins.

    [3] A1, letter from Dr Crimmins to Dr Keegan

49. By 22 May 2018 Dr Crimmins has doubled the dose of Sifrol ER (3mg daily) and the Applicant informed the Tribunal that the Madopar had been increased from two tablets per day to six.

50. The Tribunal also considers Dr Crimmins’ report of 6 September 2017, noting it was written outside the qualification period:

    Mr Parley has been a patient of this practice since February 2013. His diagnosis is that of idiopathic Parkinson’s disease of moderate to severe severity. His disease has now got to the stage where he has developed sever dyskinesia, bradykinesia involving both arms and legs, gait and balance difficulties so he is liable to falling.

51. Whilst the evidence points to Mr Parley’s Parkinson’s disease having progressed since the qualification period, the Tribunal agrees with the Social Services & Child Support Tribunal which assigned Mr Parley an impairment rating of 10 points against Table 1 at the date of claim.

52. Table 1 states that for a rating of 10 points, ‘there is a moderate functional impact on activities requiring physical exertion or stamina… if the person experiences frequent symptoms when performing day to day activities’. Mr Parley has testified this to be the case and the Tribunal places some weight in Dr Crimmins’ reports which also confirm this to be the case during the qualification period.

53. The Job Capacity Assessment Report[4] submitted in the qualification period on 30 March 2017 states:

    Customer reports that he has a strong support network through family and friends. Functionally customer reports that he requires assistance at times in toiletting [sic] – son assists. Son also assists with dressing, in particular shoes and socks. Customer able to shower himself and dress, however ability to complete this activity without assistance appears to be reducing. customer reports being unable to stand long enough to complete vacuuming and leans against the wall for support. Customer reports friends and family do his washing and shopping.

    [4] T-documents, p. 141

54. Taking into account all of these factors, and making some allowance for the scarcity of detailed reporting provided by medical specialists at the time, on balance it is my view that Mr Parley had an impairment during the qualification period which is appropriately rated 10 points under Impairment Table 1.

    Depression

55. Mr Parley was referred to a psychologist Dr Robert McKenzie of Intalink Therapy Solutions[5] in August 2015. Dr McKenzie provided a treatment plan which consisted of ‘grief counselling, psycho-education, and CBT and ACT strategies aimed at building resilience to stress and improving coping strategies.’

    [5] T-documents, p. 94

56. As there is no evidence to suggest treatment by an appropriate specialist for depression beyond seeing Dr McKenzie in 2015 the Tribunal finds that the condition was not fully diagnosed, treated and stabilised during the qualification period.

57. The Tribunal draws attention to the specific requirements contained in subsections 6(5) and (6) of the Impairment Tables Determination in regards to a condition being fully treated and stabilised, particularly given the Applicant’s suicide attempt prior to applying for DSP.

    In order to assess whether a condition is fully diagnosed and treated, one must consider 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 is planned in the next 2 years.

    A condition is fully stabilised if…the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement...

58. In relation to the Applicant’s depression, these requirements were not met during the qualification period and consequently the Tribunal cannot assign a rating under Table 5 – Mental Health Function of the Impairment Tables Determination.

    Lower limb function

59. Mr Parley also suffers from a left knee injury for which he is waiting for a total knee replacement[6]. Also relevant to Table 3 Lower Limb Function is a ruptured Achilles tendon but the Tribunal notes this injury occurred after the qualification period.

    [6] T-documents, p. 163

60. As Mr Parley was still undergoing treatment on the left knee, his condition was not fully treated and stabilised during the qualification period and cannot be assigned a rating against the Impairment Table.

    Leg cellulitis

61. Mr Parley has suffered from limb cellulitis but the Tribunal has scant details on this condition and I concur with the Job Capacity Assessment JCA[7] which states ‘in the absence of further detail [such as] treatment, onset, prognosis, functional impact… [the condition] is unable to be assessed.. and it is not fully diagnosed, treated and stabilised’. Consequently, this condition cannot be assigned a rating against the Impairment Table.

    [7] T-documents, p. 143

    CONCLUSION

1. Taking into account all the information before me, I find that Mr Parley had a permanent impairment and therefore fulfils the criteria in subsection 94 (1)(a) of the Act.

2. I find that Mr Parley’s Parkinson’s Disease was fully diagnosed, treated and stabilised during the qualification period, and was assessable at 10 points under Table 1 – Functions requiring Physical Exertion and Stamina of the Impairment Tables.

3. I find that Mr Parley’s mental health condition, knee injury and leg cellulitis were not fully diagnosed, treated and stabilised during the claim period and could not be assessed under the Impairment Tables and assigned a rating.

4. As Mr Parley has only obtained a rating of 10 points under the Impairment Tables, he does not comply with paragraph 94(1)(b) of the Act and cannot qualify for DSP.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

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

Associate

Dated: 26 July 2019

Date(s) of hearing:	11 June 2019
Date final submissions received:	8 May 2019
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services