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

[2016] AATA 273

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/1572
General Division  )

Re: Adrian Pignat
Applicant

And: Secretary, Department of Social Services
Respondent

CORRIGENDUM

TRIBUNAL:              Deputy President Bernard McCabe

DATE:   3 May 2016

PLACE:                    Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1.Remove the words ‘Solicitor for the Respondent’ and replace with ‘Advocate for the Respondent’;

2.Remove the words ‘Nicholas Warren’ and replace with ‘Ashley Burgess’.

.................................[Sgd]..................................

Deputy President

Pignat and Secretary, Department of Social Services (Social services second review) [2016] AATA 273 (29 April 2016)

Division	GENERAL DIVISION
File Number	2015/1572
Re	Adrian Pignat
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Deputy President Bernard McCabe
Date	29 April 2016
Place	Brisbane

The decision under review is affirmed.

...............................[Sgd]..................................

Deputy President Bernard McCabe

Catchwords

SOCIAL SERVICES – benefits and entitlements – disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the relevant time – whether permanent impairments can be allocated 20 points or more under the impairment tables – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

Deputy President Bernard McCabe

29 April 2016

1. Mr Adrian Pignat was granted the disability support pension (the DSP) in 2010 after he developed thyroid cancer. The DSP was cancelled on 13 January 2015 following a review in which the applicant’s case was assessed having regard to the impairment tables introduced in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Mr Pignat wants the Tribunal to review that decision.

2. The Secretary for the Department of Social Services (the Secretary) says Mr Pignat was unable to satisfy the so-called ‘medical criteria’ in s 94(1) of the Social Security Act 1991 (Cth) (the Act) at the time of cancellation. I should emphasise I am not considering whether Mr Pignat would meet the requirements of that sub-section now: his conditions may well have evolved, and subsequent investigations or developments may have impacted on his current level of impairment. I am required instead to focus on his level of impairment at a particular point in time – namely, at the cancellation date - and have regard to evidence that was known or knowable at that time.

   The medical criteria

3. An applicant must satisfy the requirements of the Act to qualify for payment of a social security benefit. Section 94 includes the medical criteria that apply to applicants for the DSP. The first of the requirements, in s 94(1)(a), is that the applicant has a physical, intellectual or psychiatric impairment. That requirement is met here: the Secretary acknowledges Mr Pignat suffers from sleep apnoea, obesity, fatigue, prolapsed discs and disc disease and left leg sciatica. He also suffered from thyroid cancer which resulted in hypothyroidism.

4. The second requirement is more complicated. Section 94(1)(b) says I must be satisfied the applicant is allocated at least 20 impairment points under one or more of the impairment tables in the Determination. Each table relates to a different aspect of the body’s function; points are awarded having regard to descriptors in each table. But there is a catch: a decision-maker cannot allocate impairment points in respect of an impairment unless the condition giving rise to the impairment is permanent: s 6(4). A condition is only permanent if it is fully diagnosed, fully treated and fully stabilised within the meaning of the Determination. I will return to this issue below.

5. The third requirement is found in s 94(1)(c). That sub-section says an applicant who is allocated at least 20 impairment points must experience a continuing inability to work. In this case, the requirement means the applicant must be unable to work at least 15 hours per week within two years of the cancellation decision.

   Are the applicant’s medical conditions permanent in the sense that they are fully diagnosed, fully treated and fully stabilised?

6. I will begin with the applicant’s obstructive sleep apnoea condition. Dr Douglas, an occupational physician, gave evidence in relation to this and other issues at the request of the applicant. In his report dated 10 November 2015 (exhibit four), he recorded a diagnosis of mild obstructive sleep apnoea had been made in 2009 but acknowledged there was no treatment with a CPAP machine.  He also noted Dr Ahmed, a cardiologist, had subsequently diagnosed sleep apnoea in his report dated 27 April 2014. But what was done about the condition? Dr Cook, an endocrinologist, recommended on 1 July 2014 that the applicant be referred for a sleep study to investigate sleep apnoea: exhibit one at pp 123-124; see also the report of Professor Allan, a thoracic and sleep physician, dated 28 August 2014: exhibit one at pp 139-140. Professor Allan said at the time:

   Clearly, a complete review is required here to ascertain the cause of his ongoing symptoms, including fatigue. Obstructive sleep apnoea needs to be excluded vigorously and treated, if appropriate.

7. The Secretary said the study was not done but Dr Douglas pointed out Professor Allan appeared to have the results of a study to hand when he completed his report dated 28 August 2014. There is no evidence that the applicant has ever been treated for the condition. It is therefore impossible to conclude the applicant’s condition is permanent because there is no evidence it has been fully treated or fully stabilised. That is potentially significant because the Secretary says the untreated sleep apnoea may explain the applicant’s lethargy and other problems. Dr Douglas, the applicant’s expert, disagrees: he said in his evidence at the hearing that sleep apnoea made a significant but not major contribution to the applicant’s lethargy. In any event, it is impossible for me to allocate impairment points in respect of the impairment caused by that condition.

8. The applicant also suffers from obesity. The condition appears to be fully diagnosed: see the report of the job capacity assessor dated 12 November 2014 and the report of Dr Ahmed, the cardiologist, dated 27 April 2014 and cited by Dr Douglas in his report (exhibit 4). The Secretary doubts the condition is fully treated and fully stabilised. There is a concern that the obesity condition exacerbates the sleep apnoea.

9. Dr Cook had recommended dietary and perhaps lifestyles changes to address the obesity condition (and, in doing so, the sleep apnoea) in her report dated 1 July 2014 (exhibit one at p. 124). It seems that was not done. Dr Smith, the medical adviser to the Health Professional Advisory Unit within the Department of Human Services, provided a written report (attachment D to the Secretary’s Statement of Facts, Issues and Contentions) and gave oral evidence at the hearing. Dr Smith says the applicant’s obesity condition was not fully treated and stabilised at the relevant time. 

10. Dr Douglas, the applicant’s occupational physician, did not have a great deal to say on the topic although his report appears to suggest obesity might also be connected with the thyroid issues: exhibit four at [5]. In any event, there is no suggestion the applicant has been fully treated for the condition, or that he is fully stabilised. That means the condition is not permanent and impairment points cannot be allocated.

11. I will deal next with the applicant’s spinal condition. Dr Douglas noted the applicant has reported pain in the lower back since 2004. Dr Smith agreed the condition was fully diagnosed, fully treated and fully stabilised. It is therefore appropriate to assess the condition against table 4 which deals with spinal function.

12. The job capacity assessor reported on 12 November 2014 that the applicant was able to stand for 2-3 hours, mow the lawn (although he had to stop after an hour), complete most household tasks, use a chainsaw and bend, lift and carry. On that basis, the assessor recommended the applicant be allocated 5 points under table 4. A report prepared by the Health Professional Advisory Unit dated 15 October 2014 (exhibit one at pp 148ff) reached an essentially similar view after noting difficulty bending, lifting and carrying but an ability to mow the lawn. The advice suggested 5 points was appropriate.  Dr Smith agreed 5 points was the appropriate allocation of points in the circumstances.

13. Dr Douglas disagreed with that assessment. At the hearing, he said the applicant had difficulty getting out of a chair and could not perform overhead activities. He agreed the applicant might be able to sit in and drive a car for 30 minutes, but suggested it would be a struggle.

14. This oral evidence is difficult to square with comments in Dr Douglas’s report dated 10 November 2015. In that report, he recorded the applicant had given a history that included:

    ·Driving children to and from school;

    ·Driving for about 60 minutes (apparently Mr Pignat drove to the appointment);

    ·Getting in and out of a “tinny” when he went fishing, and – presumably – the car; and

    ·Assisting with household chores.

15. That history is consistent with the history provided to the job capacity assessor. I am unable to account for Dr Douglas’s more negative assessment at the hearing, although I note the applicant also offered a more negative account of his capacity in the course of his oral evidence. The applicant said his earlier accounts were given without understanding the purpose of the questions he was being asked. He said he had good days and bad days, and that he was much more restricted on frequent bad days. It may be the applicant’s condition is worsening, perhaps because of his obesity: he said as much in the course of cross-examination. (He said he had not mown the lawn in about 12 months – that is, since about the time of the cancellation decision.) I must focus on what his condition was like at the time of the cancellation decision.

16. I accept Dr Douglas had the opportunity to examine the applicant. He is clearly possessed of the appropriate expertise. But he has given substantially different evidence at the hearing than he gave in his written report which was prepared two months earlier. I note he has consistently said 10 points should be allocated under table 4, but he was unable to satisfactorily explain why that was appropriate. In the circumstances, I prefer the evidence of Dr Smith who is experienced in conducting reviews having regard to these impairment tables. He allocated 5 points under table 4. I note Dr Smith’s conclusions appear to be consistent with the opinion expressed in the treating doctor’s report prepared by Dr Pinidiyapathirage: exhibit one at pp 125ff. She was familiar with the applicant’s condition at the relevant time.

17. I turn then to the applicant’s lower limb condition. The applicant says he experiences left leg sciatica as a consequence of the spinal condition. There does not appear to be any dispute that the condition is permanent for the purposes of the Determination. He says he endures leg pain every day and suffers occasional spasms which make it difficult to walk. He said he often uses a walking stick when he is out and about. He also said the sciatic pain makes it harder for him to drive longer distances on a bad day.

18. There was limited medical evidence available in relation to the lower limb condition. Most of it was supplied orally at the hearing by Dr Douglas. Dr Douglas said the applicant was unable to walk far outside the home and needed transport to get to the shops. He was also unable to use the stairs without assistance. Dr Douglas said the applicant often used a walking stick to get around and had troubles with balance and mobility. He said the applicant should be allocated 10 points under table 3.

19. Mr Burgess, for the Secretary, questioned Dr Douglas closely about aspects of this evidence. Dr Douglas agreed in cross-examination that the applicant might be able to walk up to a kilometre from his home but that he would do so slowly and might experience pain. He did not suggest the applicant could not walk outside the home at all, but suggested he was less able to do so than an able-bodied person. He also agreed the applicant could climb stairs using a handrail, albeit with more difficulty than an able-bodied person. He also acknowledged evidence from the applicant that he was able to stand for longer than five minutes.

20. I think Dr Douglas is using the word “unable” too liberally. I am not persuaded the applicant is unable to perform the activities in clauses (1)(a)-(c) under the heading “moderate functional impact” in table 3. He may experience acute pain if he exerted himself, but the information he provided around the time of cancellation suggested he was able to undertake activities referred to in the descriptors without too much difficulty, The applicant should be allocated 5 impairment points.

21. That leaves the lingering effects of the applicant’s thyroid cancer, which include hypothyroidism, leading to fatigue. Dr Cook opined in her report that the applicant’s thyroid cancer was no longer an issue:  exhibit one at p 124. She said the cancer and the medication he was taking did not explain the fatigue he was experiencing: she put that down to sleep apnoea. Professor Allan also suspected sleep apnoea was the cause of the fatigue but recommended further investigation. Dr Smith agreed with this view.

22. Dr Douglas did not argue the fatigue was the product of the drugs used to treat the thyroid condition. He put it down to the body taking time to recover from the insult caused by the cancer. He said in his experience patients recovering from cancer can take years to return to normal functioning even after the cancer has been cured.

23. Dr Smith agreed in his oral evidence that it could take time for a person who survived cancer to recover function. He noted the cancer was eliminated a number of years ago; he said he did not expect there to be an ongoing effect in excess of five years later.

24. I accept the hypothyroidism which was a consequence of thyroid cancer was permanent in the relevant sense. Dr Douglas may ultimately prove correct in his supposition that the fatigue is the result of the insult from the cancer, but the fatigue may also be the product of sleep apnoea exacerbated by obesity. Alternatively, fatigue may be multi-factorial as Dr Smith suggests: the insult and the apnoea might both play a role, as might pulmonary embolisms. But all of that is speculative until further investigations are completed and treatments considered as Professor Allan in particular has recommended. I am not satisfied the fatigue condition is fully diagnosed, fully treated and fully stabilised, so the condition cannot be regarded as being permanent and impairment points cannot be allocated. 

25. In summary, I am satisfied the applicant cannot be allocated at least 20 points under the impairment tables. That means he is unable to satisfy the criteria in s 94(1)(b) of the Act.

    Conclusion

26. The applicant’s claim cannot succeed because he does not satisfy the requirement in s 94(1)(b). There is no need for me to consider whether he is able to meet the additional requirement of experiencing a continuing inability to work.

27. The decision under review must be affirmed.

28.     I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 29 April 2016

Date of hearing	14 January 2016
Solicitor for the Applicant	Phil Nolan, Maurice Blackburn Lawyers
Advocate for the Respondent	Ashley Burgess, Department of Human Services, Freedom and Information and Litigation Branch