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

[2017] AATA 2745

Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745 (20 November 2017)

Division:GENERAL DIVISION

File Number:           2015/1572

Re:Adrian Pignat

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:20 November 2017

Place:Brisbane

The decision under review is affirmed.

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

Deputy President Bernard J McCabe

CATCHWORDS

Disability support pension – whether the applicant’s fatigue condition cannot be allocated at least 10 points under the impairment tables – consideration of the meaning of the expression “results from” – where the applicant’s impairment does not result from the permanent medical condition – decision under review affirmed

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1991, s80

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

CASES

Pignat and Secretary, Department of Social Services (Social services second review) [2016] AATA 273

REASONS FOR DECISION

Deputy President Bernard J McCabe

20 November 2017

1. Mr Adrian Pignat was granted the disability support pension (DSP) in 2010 following a bout of thyroid cancer.  He suffers from a number of other health conditions which may also impact on his ability to work.  The DSP was subsequently cancelled in early 2015 after Mr Pignat was re-assessed against the more restrictive impairment tables that were introduced in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  Mr Pignat wants that decision set aside so he can continue to receive the DSP.

2. The matter has an unfortunate history. I dealt with the application for review on 29 April 2016. I considered the evidence in relation to Mr Pignat’s health conditions and their impact against the criteria in s 94 of the Social Security Act 1991 (the Act).  I decided to affirm the decision under review: Pignat and Secretary, Department of Social Services (Social services second review) [2016] AATA 273. That decision was subsequently set aside by the Federal Court by consent on 26 August 2016. The matter was remitted to me for reconsideration.

3. The key error in my approach on that earlier occasion appears to arise out of the operation of s 80 of the Social Security (Administration) Act 1991 (the Administration Act). That section is engaged where the decision-maker is cancelling or suspending an existing entitlement, as opposed to approving a fresh application. In cancellation cases like this, I must be satisfied the applicant does not qualify – and that the DSP should therefore be cancelled – whereas in fresh applications the decision-maker must be satisfied the applicant does qualify for the DSP.  As counsel for the applicant explained at the rehearing, I must be satisfied that the circumstances are such that the pension ought to be cancelled, as opposed to being satisfied the applicant meets the criteria.

4. The terms of the remittal were set out in a letter from the Federal Court to the District Registrar dated 20 September 2016.  That letter noted:

   ·the parties agreed “the applicant’s obstructive sleep apnoea and obesity conditions were not permanent.” That is significant because I am not permitted to assign an impairment rating under the tables if the conditions were not permanent; and

   ·it was unnecessary for me to reconsider the applicant’s spinal and lower limb conditions.  Those conditions were each allocated 5 impairment points in the earlier decision: Pignat at [11]-[16] and [17]-[20].

5. What remained was, first of all, a question over whether I am satisfied the applicant’s fatigue condition could not be allocated at least 10 impairment points under the impairment tables at the date of cancellation. Depending on the answer to that question, it may be necessary to consider whether I am persuaded the applicant did not meet the criteria in s 94(1)(c) of the Act and other provisions.

   What is the explanation for the applicant’s fatigue?

6. Mr Pignat was originally granted the DSP when his thyroid cancer was being treated.  A job capacity assessment in 2010 assigned 20 points under table 20 of the old impairment tables in light of evidence that the thyroid condition and the cancer impacted on his levels of fatigue: see exhibit one – T-documents at T25, p 156.  There is no reason to doubt that was the correct decision at the time.  As previously noted, the impairment tables have been amended to remove  table 20 and fresh medical evidence was considered by an assessor in connection with the review.  That evidence confirms the cancer is in remission following successful treatment, which included a thyroidectomy. But the applicant says he continues to experience fatigue.  A number of medical conditions might contribute to fatigue.

7. Some of the conditions were considered and rejected in the earlier proceedings before me.  There is no challenge to my findings that the applicant’s sleep apnoea and obesity conditions were not permanent for the purposes of the impairment tables.  That is potentially significant because both of those conditions are obvious explanations for fatigue. I note a report from Professor Allan, the applicant’s thoracic surgeon, suggested sleep apnoea was a likely explanation for the applicant’s ongoing fatigue: exhibit one – T-documents at T20 pp 139-140.  Dr Cook, the applicant’s treating endocrinologist, expressed a similar view: exhibit one – T-documents at T18, p 124.  In contrast, Dr Douglas, an occupational physician called by the applicant, doubted the sleep apnoea in particular made a major contribution to the applicant’s lethargy.

8. It is difficult to reach a definitive view about the contribution, if any, made by the sleep apnoea in the absence of sleep studies.  Yet a preponderance of the medical evidence from the specialists with relevant expertise suggests sleep apnoea is likely to be a significant factor.

9. What of the other explanations for the condition?  Dr Cook, who was involved in treating the applicant’s thyroid cancer, concluded in her letter dated 1 July 2014 (exhibit one – T-documents at T18, pp 124) that neither the carcinoma nor the dosage of thyroxine (the drug used to treat low thyroid hormone levels) was contributing to the ongoing symptoms of fatigue. Dr Smith, the adviser to the Health Professional Advisory Unit within the Department of Human Services, agreed in his oral evidence at the earlier hearing that the cancer was no longer an issue.  While he agreed it might take some time for a person to recover function after the cancer was effectively eliminated, he said the effects of the thyroid condition should have ceased by the time the cancellation decision was made.

10. While Dr Douglas raised some question over the ongoing contribution of the thyroid condition, that was not the thrust of his evidence.  To the extent that he disagreed with Dr Cook, I prefer Dr Cook’s evidence: she was the treating endocrinologist, which is the relevant discipline. Her opinion carries greater weight in the circumstances.

11. I am fortified in that preference by the fact Dr Douglas’s evidence tended to focus on what might be described as a ‘post cancer syndrome’ rather than the thyroid condition itself. Dr Douglas gave evidence at the hearing suggesting a cancer survivor might experience ongoing symptoms, including fatigue, for years after the cancer was successfully eliminated.  The insult of the cancer and the drugs or other procedures used to treat the cancer took a long-term toll on the body and its functioning, he explained.

12. The analysis is an interesting one, but – assuming post-cancer syndrome is properly regarded as a diagnosable medical condition – the evidence does not persuade me it has been properly diagnosed or treated in this case.  Dr Smith, for one, disagreed with Dr Douglas’s opinion.  Dr Smith said any lingering effects of cancer or cancer treatment should have disappeared long before the cancellation date.

13. In my earlier reasons, I alluded to my hesitation in accepting Dr Douglas’s evidence: Pignat at [16]. I noted his evidence at the hearing was substantially more favourable to the applicant than his earlier written reports. A review of the recording of the hearing confirms my impression that his evidence may have been affected by advocacy (for the applicant, and in favour of his views on post-cancer syndrome). I also note he was unable to satisfactorily explain some of his opinions. In the circumstances, I prefer the evidence given by Dr Smith whose evidence appeared to be the product of a more detached and independent approach. Given the state of the evidence, and the opinion of Dr Smith (in particular) that discounts the possibility of a post-cancer syndrome being present in this case at the time of the cancellation decision, I am satisfied I should find the applicant’s fatigue does not result from such a condition.

14. Which brings me back to hypothyroidism.  I concluded at the first hearing that hypothyroidism was a permanent condition in the relevant sense: Pignat at [24]. I was not provided with any evidence suggesting I depart from that conclusion, and neither of the parties suggested I should do so.

15. Mr Black, counsel for the applicant, pointed out the job capacity assessor’s conclusion (reported in exhibit one– T-documents at p 157) that hypothyroidism was one of the factors contributing to the applicant’s lethargy and fatigue at the cancellation date.  That conclusion is inconsistent with the evidence of Dr Cook, but I note the respondent appears to accept the fatigue is multi-factorial in origin.  At the earlier hearing, the respondent appeared to accept the thyroid condition may have made a contribution to the fatigue but insisted it was only a minor contribution that did not assist the applicant in these proceedings.

16. Dr Cook’s evidence makes clear that she does not regard hypothyroidism – or the treatment for that condition – as a proper explanation for the applicant’s lethargy. I prefer her evidence as she is the treating specialist in the relevant discipline; her familiarity with the applicant’s case and her specialist qualifications and experience suggest I should give decisive weight to her opinion.  But given the other evidence that fatigue is likely multi-factorial in origin, I am not satisfied I can completely exclude the possibility that hypothyroidism is a factor – if only a minor or uncertain factor – contributing to Mr Pignat’s fatigue.  I do not think Dr Cook’s evidence goes that far.

    What happens if the applicant’s fatigue is multi-factorial, and a permanent condition is one (albeit not a significant) factor?

17. Mr Black argued that once I accept fatigue is multi-factorial and one of the factors is a permanent condition, it is necessary to assess the applicant’s fatigue under the impairment tables as if that fatigue were entirely attributable to the permanent condition. The respondent disagrees.  The Secretary says I should only have regard to that part of the fatigue which is in fact attributable to the permanent condition.

18. The applicant’s case in this respect turns on the definition of impairment in the Determination. Section 3 defines impairment as:

    a loss of functional capacity affecting a person’s ability to work that results from the person’s condition. [Emphasis added]

19. Mr Black says the key lies in the underlined words in the passage quoted above. He says the requirement that an impairment results from a medical condition means there must be a causal connection between the impairment and the condition, but that is all. He says a permanent medical condition does not have to be the exclusive or even a significant cause of the impairment, so long as there is a causal relationship. He also said the causal connection need not be direct or proximate. He pointed out it would be practically difficult to approach the matter as the respondent suggested in paragraph [29(a)] of the outline of submissions – that is, by determining what proportion of the impairment was attributable to the fatigue that related to the permanent condition. Mr Black also pointed out this was beneficial legislation, and it was therefore appropriate to prefer an interpretation of the legislation that was legitimately open if that interpretation was more consistent with the objectives of the statute.

20. Mr McGlade appeared as Counsel for the respondent. He argued I should put to one side the contribution of the non-permanent conditions like sleep apnoea and obesity and ask whether I was satisfied the applicant should not be allocated at least 10 points under the tables in respect of fatigue.

21. I accept that, at least in some cases, it will be impractical to isolate the contribution of a particular condition towards an impairment when a number of other conditions also contribute to that impairment.  I also accept this is beneficial legislation.  In those circumstances, I accept a permanent medical condition need not be the only contributor to impairment before that impairment can be assessed, at least in cases where it would be practically impossible to isolate the contribution made by a permanent condition as opposed to another, non-permanent condition. But how significant must the contribution of the permanent condition be relative to the non-permanent conditions before the impairment can be said to result from the permanent condition?

22. That may be the wrong question. Mr Black certainly seemed to think so.  At any rate, I do not think it is necessary to provide a complete answer.  For present purposes, it is enough if I say an impairment does not result from a permanent medical condition if the evidence I prefer suggests the permanent medical condition did not make a real or operative contribution to the impairment.  It would strain the common sense meaning of the words ‘results from’ if I were to conclude that even a de minimus contribution would establish the causal connection anticipated in the legislative scheme.  The legislative scheme restricts access to the DSP to persons who have exhausted reasonable medical options for treatment that might make a positive difference to their level of impairment.  A permanent medical condition is not an ace that inevitably transforms an otherwise unpromising hand simply because the condition is present and cannot be definitively excluded as a contributor, no matter how insignificant or unlikely.

23. In this case, I am reasonably satisfied on the medical evidence that the applicant’s impairment does not result from the permanent medical condition of hypothyroidism because that condition does not make an appreciable or real contribution to the fatigue.  In substance, the impairment likely results from something else that has not yet been definitively identified – such as sleep apnoea or obesity.

    Conclusion

24. My conclusion in this case turns on the findings I make in relation to the medical evidence. I prefer the evidence of the treating endocrinologist who opined the applicant’s hypothyroidism (or the treatment for hypothyroidism) was not contributing to the applicant’s fatigue.  Even if I am unable to definitively exclude the thyroid condition from the mix, I cannot be satisfied it plays such a role that I would be entitled to conclude the fatigue results from that permanent condition.  Indeed, in all the circumstances, I am satisfied the impairment does not result from the thyroid condition and that impairment points should not be awarded under table one.  In those circumstances, I am positively satisfied the applicant did not qualify for the DSP at the date of cancellation.  The cancellation decision is therefore affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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

Associate

Dated: 20 November 2017

Date of hearing:	13 February 2017
Counsel for the Applicant:	Mr M Black
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr B McGlade
Solicitors for the Respondent:	Sparke Helmore Lawyers