Rayner and Secretary, Department of Social Services (Social services second review)
[2016] AATA 147
•14 March 2016
Rayner and Secretary, Department of Social Services (Social services second review) [2016] AATA 147 (14 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3383
Re
Vincent Rayner
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 14 March 2016 Place Perth The Tribunal affirms the decision under review.
.............[Sgd]...........................................................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant’s fully diagnosed, treated and stabilised impairments did not attract 20 points or more under the Impairment Tables in the qualification period – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)
Social Security (Administration) Act 1999 – s 13 – s 41 – s 42 – clause 3 of Schedule 2 – clause 4(1) of Schedule 2
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – s 3 - s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – Table 1 – Table 5 – Table 10
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
Senior Member CR Walsh
14 March 2016
INTRODUCTION
Mr Rayner seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 4 June 2015, that his claim for disability support pension (DSP) should be rejected because he was not qualified for DSP under s 94(1) of the Social Security Act 1991 (SSA) as his “impairments” (being anxiety/depression, fibromyalgia, bruxism prostate cancer, skin cancer, tinnitus, rectal disorder/piles, diverticular disease, shoulder/upper limb disorder and skin disorder/dermatitis) did not attract 20 points or more under the Impairment Tables (Impairment Tables) in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) as at the date of his DSP claim (being 3 October 2014) or within 13 weeks of that date (being 2 January 2015).
FACTUAL & PROCEDURAL BACKGROUND
Mr Rayner was born on 5 May 1958 and is 57 years of age.
Mr Rayner lodged his claim for DSP (dated 29 September 2014) with Centrelink on 3 October 2014. He identified his claim as being in respect of the following “disabilities, illnesses or injuries”:
prostate carcinoma, melanoma stage 4 (current), nervous breakdown (prior), depression and anxiety (current), fibromyalgia (current).
A DSP Medical Report completed by Dr Foong, on 27 June 2014, diagnosed Mr Rayner as suffering from severe major depression, chronic pains - associated fibromyalgia & [osteoarthritis] - shoulder/lower back, cancer of the prostate, piles and diverticular disease.
On 29 October 2014, Mr Rayner attended a face to face Job Capacity Assessment (JCA) with a registered psychologist and an accredited exercise physiologist (October 2014 JCA Report). In the October 2014 JCA Report, the JCA assessors found that Mr Rayner’s:
· “depression” was permanent, verified by medical evidence, fully diagnosed, fully treated and fully stabilised and recommended that the condition be assigned 5 impairment points under Table 5 of the Impairment Tables (Mental Health Function);
· “chronic pain” condition was permanent, verified by medical evidence, fully diagnosed, fully treated and fully stabilised and recommended that the condition be assigned 10 impairment points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina);
· “osteoarthritis (shoulder/lower back)” condition was permanent and verified by medical evidence but not fully diagnosed, fully treated and fully stabilised such that no impairment points should be assigned to this condition;
· “prostate cancer/tumour” and “skin cancer/tumour” conditions were permanent, verified by medical evidence and fully diagnosed, but not fully treated and fully stabilised such that no impairment points should be assigned to these conditions;
· “rectal disorder (piles)” and “diverticular disease” were permanent and verified by medical evidence found not fully diagnosed, fully treated and fully stabilised such that no impairment points should be assigned to these conditions; and
· “tinnitus” and “skin disorder” (dermatitis) conditions were not permanent, not medically verified and, it follows, not fully diagnosed, not fully treated and fully stabilised, such that no impairment points should be assigned to these conditions.
In the October 2014 JCA Report, the JCA assessors concluded that Mr Rayner had the following “Work Capacity”:
Baseline Work Capacity: 8 - 14 Hours per week
……….
Rationale:Mr Rayner, resultant from his permanent medical conditions, has been assessed as having a baseline work capacity of 8-14 hpw. This is to acknowledge the impacts his reduced psychological endurance, and chronic pain, stemming from his diagnosis of fibromyalgia, will have upon his ability to engage in suitable paid employment.
Suitable work: Light semi-skilled (W02)
Examples: Office based work, customer service
Capacity for work within 2 years with Intervention: 15-22 Hours per week.
On 10 November 2014, Centrelink notified Mr Rayner of its decision to reject his claim for DSP on the basis that his impairments did not attract 20 points or more under the Impairment Tables (Original Decision).
On 20 March 2015 a Centrelink Authorised Review Officer (ARO) affirmed the Original Decision (ARO Decision).
Mr Rayner subsequently applied to the SSAT for a review of the ARO Decision and, on 4 June 2015, the SSAT affirmed the ARO Decision (SSAT Decision). In summary, the SSAT found that:
47.Mr Rayner’s medical conditions generate 15 impairment points. This is less than the required 20 points. This means he did not satisfy paragraph 94(1)(b) of the Act.
On 6 July 2015, Mr Rayner applied to this Tribunal for a review of the SSAT Decision.
ANALYSIS
Qualification for DSP
The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:
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
…………
[Emphasis added]
For Mr Rayner to qualify for DSP, he will need to satisfy s 94(1)(a), (b) and (c) of the SSA, as set out above as at the date of his claim (being 3 October 2014) or within 13 weeks of that date (being 2 January 2015): refer to paragraphs 13 and 14 below.
Qualification Period
The Social Security (Administration) Act 1999 (SSAA) provides that the “start-day” for a qualified DSP claimant is the date of the claim: s 13, s 41, s 42 and cl 3 of Schedule 2 to the SSAA. This means that qualification for DSP and impairment ratings must be determined as at the date of the claim. The only exception is where the claimant is not qualified on the date of the claim but “will…become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case the “start-day” is the day the claimant became qualified: cl 4(1) of Schedule 2 to the SSAA.
Consequently, the relevant period for consideration of Mr Rayner’s qualification for DSP is 3 October 2014 (being the date he claimed DSP) to 2 January 2015 (being 13 weeks after 3 October 2014) (Qualification Period).
Does Mr Rayner have any “impairments” for the purposes of s 94(1)(a) of the SSA in the Qualification Period?
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Determination defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
It is not in dispute that Mr Rayner suffered from the following “impairments” in the Qualification Period and, therefore, satisfied s 94(1)(a) of the SSA:
· Anxiety/Depression;
· Fibromyalgia;
· Nervous system disorder (bruxism);
· Prostate cancer/tumour;
· Skin cancer/tumour;
· Tinnitus;
· Rectal disorder (piles);
· Diverticular disease;
· Shoulder/upper limb disorder; and
· Skin disorder (dermatitis).
Did Mr Rayner’s impairments attract at least 20 points under the Impairment Tables for the purposes of s 94(1)(b) of the SSA in the Qualification Period?
A person’s level of impairment 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: s 6(1) of the Impairment Determination.
The Impairment Tables 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: s 6(2) of the Impairment Determination.
The “Introduction” to the Impairment Tables sets out that an impairment rating can only be allocated in relation to an impairment if the condition causing the impairment is “permanent” and the impairment is “likely to persist for more than 2 years”: s 6(3) of the Impairment Determination.
A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and “likely to persist for more than 2 years”: s 6(4) of the Impairment Determination.
An “appropriately qualified medical practitioner” means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Determination.
In determining whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:
(i)whether there is corroborating evidence of the condition;
(ii)what treatment or rehabilitation has occurred in relation to the condition; and
(iii)whether treatment is continuing or is planned in the next 2 years: s 6(5) of the Impairment Determination.
In relation to what is meant by “fully stabilised”, s 6(6) of the Impairment Determination provides:
Fully Stabilised
(6)For the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination, a condition is fully stabilized if:
(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. [Emphasis added]
Section 6(7) of the Impairment Determination provides that “reasonable treatment” , for the purposes of s 6(6) of the Impairment Determination, is treatment that:
(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.
In order to satisfy s 94(1)(b) of the SSA, Mr Rayner’s impairments must attract an impairment rating at least 20 points under the Impairment Tables in the Qualification Period. Consequently, medical evidence concerning the functional impact of Mr Rayner’s impairments after the Qualification Period cannot be considered by the Tribunal for the purposes of this particular application, although medical evidence which post-dates the Qualification Period may be considered by the Tribunal if it “casts light on” the functional impact of Mr Rayner’s impairments in the Qualification Period: see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 per Gyles J at [1].
The appropriate impairment rating to be assigned to each of Mr Rayner’s impairments under the Impairment Tables in the Qualification Period, based on the relevant medical evidence, is considered below.
1. Anxiety/Depression
It is not in dispute that Mr Rayner’s anxiety/depression was permanent and fully diagnosed, fully treated and fully stabilised in the Qualification Period. The relevant issue for consideration by the Tribunal is whether, as found by the SSAT, Mr Rayner’s anxiety/depression condition attracted 5 points under Table 5 of the Impairment Tables (Mental Health Function) in the Qualification Period.
An impairment will attract 5 points under Table 5 of the Impairment Tables if there is “mild” functional impact on activities involving health function. This will be the case where the person has “mild” difficulties with most of the following:
(a)self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The personal has interpersonal relationships that are strained with occasional tension or arguments.
(d)concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulty completing education or training.
(e)behaviour, planning and decision-making;
Example: 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that requires intervention by a supervisor, manager or teacher or changes in placement or groupings.
An impairment will attract 10 points under Table 5 of the Impairment Tables if there is “moderate” functional impact on activities involving health function based on the. This will be the case where the person has “moderate” difficulties with most of the tasks set out above (in paragraph 28).
An impairment will attract 20 points under Table 5 of the Impairment Tables if there is “severe” functional impact on activities involving mental health function. This will be the case where the person has “severe” difficulties with most of the tasks set out above (in paragraph 28).
The medical evidence which is relevant to assessing the functional impact of Mr Rayner’s anxiety/depression condition is, in summary, as follows.
A JCA, dated 10 November 2008, which noted that Mr Rayner suffered:
profound anxiety and depressive symptoms for many years’ and has undertaken multiple treatments including medication and psychotherapy.
Dr Pervan, in a DSP Medical Report dated 10 April 2013, diagnosed Mr Rayner as having “severe generalised anxiety and depression”, past treatment for which had included “psychiatric review”.
Dr Foong, in a DSP Medical Report dated 20 July 2013, diagnosed Mr Rayner with “severe depression – major with anxiety”, treatment for which was then Sertraline and past treatment for which had been with a psychiatrist in 1993 for “yrs”.
On 24 July 2013, Dr Foong completed a further DSP Medical Report in which he again diagnosed Mr Rayner with “severe depression/anxiety” and observed that Mr Rayner had a “long history of depression/anxiety since 1993”.
A JCA, dated 29 August 2013, noted the diagnosis from Dr Wu and found Mr Rayner’s anxiety/depression condition was fully diagnosed, but not yet fully treated and stabilised as Mr Rayner had only recently recommenced treatment for this condition under a psychiatrist and:
an extended period of 0-7 has been advocated for the client to maintain continuity in psychiatric assistance with a view to improving his symptomatology.
Dr Raymond Wu, psychiatrist, completed a DSP Medical Report on 6 September 2013 in which he diagnosed Mr Rayner with “major depressive disorder, relapse episode and multiple somatic symptoms’” which was first diagnosed on 16 August 2013 and for which Mr Rayner had been prescribed “Sertraline 50-100mg – Dr Foong” “and “Nortriptyline 10-20mg – Dr Tranh”. Dr Wu considered the condition would persist for “More than 24 months” and its impact on Mr Rayner’s functional capacity during that period was expected to “Remain unchanged” and to be “Uncertain”.
On 27 March 2014, Dr Sunny Varghese, consultant psychiatrist, wrote to Dr Foong noting Mr Rayner’s depressive symptoms and recommending a graduated change to his antidepressant medication regime.
A JCA, dated 14 May 2014, noted that Mr Rayner was currently prescribed Zoloft in respect of his “Profound anxiety and depression” but he had “not been seen by a psychiatrist or psychologist for at least 10-15 years”.
Dr Foong completed a further DSP Medical Report on 27 June 2014 in which he diagnosed Mr Rayner with “severe major depression” and noted that the condition was expected to persist for “More than 24 months” during which time its impact on Mr Rayner’s ability to function was expected to “Remain unchanged”. Dr Foong noted the applicant was tired, had low moods, was weepy and easily upset, had poor sleep, poor concentration and was “not coping with stress situations”.
The October 2014 JCA Report states that Mr Rayner was “compliant on medication for over twelve months” and was “under the care of a GP as well as a psychiatrist” in respect of his depression.
On 24 January 2014, Dr Foong issued a medical certificate (which post-dates the Qualification Period) noting Mr Rayner’s depression is “ongoing” and caused him to be:
unable to focus and concentrate to look for a job or to do anything meaningful.
Dr Zlatan Golic, psychiatrist, provided a report, dated 17 June 2015, stating the following in relation to Mr Rayner’s anxiety/depression condition:
…..in spite of robust treatment with Zoloft 200mg mane, Chlorpromazine 50 or 150mg nocte and Lyrica 150mg twice per day (considered as a mood stabiliser) he is still struggling with his fluctuating anxiety and prominent low mood with considerable melancholic symptomatology.
It appears that his depression is biological and is only partially responding to medication. However, at this stage I would be reluctant to radically change his medication as there is a reasonable response.
In my opinion only on the basis of psychiatric symptoms, depression and anxiety he would not be able to obtain or function in any occupational capacity. His cognitive symptoms secondary to depression and anxiety are prominent and would interfere with his occupational functioning.
Currently his level of performances even at home are rather minimal. He is heavily dependent on his wife who tends to provide ongoing support for him.
In reviewing the Social Security Appeals tribunal decision I notice that he was only given 5 points for his Depression and Anxiety on the basis that his depression and anxiety symptoms are not significant in severity and considered as rather mild or moderate. This is rather gross misinterpretation of his affective an anxiety symptoms.
I would consider this man to fit into the category of moderately severe to severe. I would consider this man in the range of moderately severe anxiety symptoms and severe symptoms of depression in spite of his treatment.
His assessment by the Tribunal is rather inaccurate and the reason for that could be based on letter by a Consultant Psychiatrist which I believe was written in 2013. [Emphasis added]
The medical evidence before the Tribunal fails to establish that Mr Rayner’s anxiety/depression condition had a “moderate” or “severe” functional impact on activities involving mental health function in the Qualification Period, thereby attracting 10 or 20 points (i.e. rather than 5 points, as found by the SSAT) under Table 5 of the Impairment Tables. In reaching this conclusion, the Tribunal also relies on Mr Rayner’s evidence before the SSAT concerning the functional impact of his anxiety/depression condition in the Qualification Period, as set out in the SSAT Decision at [30] and his oral evidence before this Tribunal. In particular, the Tribunal notes Mr Rayner’s oral evidence that he had difficulty focusing on complex tasks for more than an hour (indicative of “mild” functional impact on activities involving mental health function under Table 5).
Further, while Dr Golic opined, in his report dated 17 June 2015, that Mr Rayner’s anxiety/depression condition “fit into the category of moderately severe to severe”, Dr Golic’s report post-dates the Qualification Period and, importantly, does not address the functional impact of Mr Rayner’s anxiety/depression condition in the Qualification Period. As such, it cannot be considered by the Tribunal in relation to this application. Further, in his 17 June 2015 report, Dr Golic does not assess Mr Rayner’s anxiety/depression condition against the relevant criteria in Table 5 of the Impairment Tables to support his view that Mr Rayner’s anxiety/depression condition has “moderate” or “severe” functional impact on Mr Rayner’s activities which involve mental health function.
Accordingly, based on the relevant medical evidence the Tribunal considers that Mr Rayner’s anxiety/depression condition attracted 5 points under Table 5 of the Impairment Tables in the Qualification Period.
2. Fibromyalgia
It is common ground that Mr Rayner’s fibromyalgia condition is permanent, fully diagnosed, fully treated and fully stabilised and that Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) is the appropriate Impairment Table under which to assess this condition. It is also common ground that Mr Rayner’s fibromyalgia condition attracts at least 10 impairment points under Table 1 of the Impairment Tables as it has “moderate” functional impact on activities requiring physical exertion and stamina in the Qualification Period.
However, in order to attract 20 points under Table 1 of the Impairment Tables, Mr Rayner’s fibromyalgia would need to have had a “severe” functional impact on activities requiring physical exertion and stamina in the Qualification Period. This requires the following criteria to be have been met in the Qualification Period:
(1) The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(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;
(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); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationery nature for a continuous shift of at least 3 hours.
The Tribunal considers that the relevant medical evidence does not establish that Mr Rayner’s fibromyalgia condition had a “severe” functional impact on activities requiring physical exertion or stamina in the Qualification Period but, rather, that it had a “moderate” functional impact on activities requiring physical exertion or stamina in that period and, therefore, attracted 10 impairment points under Table 1 of the Impairment Tables in the Qualification Period, as found by the SSAT.
In reaching this conclusion, the Tribunal relies on the following evidence of the functional impact of Mr Rayner’s fibromyalgia condition in the Qualification Period:
· Dr Ai Tran, consultant rheumatologist, noted in a report dated 16 August 2013 that Mr Rayner’s had “widespread bodily aches and pains involving the shoulders, hands, knees and feet bilaterally and that his symptoms seemed “multi factorial and this seems to be due to underlying degeneration however [he] also sense[d] a degree of pain amplification namely fibromyalgia” which was “compounded by underlying depression”. Dr Tran recommended medication and a referral to the STEPS pain program;
· A JCA, dated 29 August 2013, noted Mr Rayner’s report of widespread bodily aches and pains involving he shoulders, hands, knees and feet bilaterally. The referral to the STEPS programme at Fremantle Hospital was noted;
· The DSP Medical Report, completed by Dr Foong on 27 June 2014, diagnosed Mr Rayner with “‘chronic pains - associated fibromyalgia OA – shoulder/lower back”’ and noted the referral to Dr Tran. The condition was said to have been diagnosed in August 2013 and treatment included Lyrica. It was noted that Mr Rayner’s treatment at the Pain Clinic at Fremantle Hospital had “now stopped as no more treatment possible”. According to Dr Foong, Mr Rayner’s fibromyalgia condition was expected to persist for “More than 24 months” and its impact on Mr Rayner’s ability to function “Remain unchanged”;
· The JCA October 2014 Report, referred to Mr Rayner’s “Chronic Pain” condition as being fully diagnosed, fully treated and fully stabilised as Mr Rayner had completed the pain management course through Fremantle Hospital and was compliant with the current medication and exercise regime; and
· Mr Rayner’s evidence before the SSAT, as set out in the SSAT Decision at [33].
The Tribunal relies on Mr Rayners’ oral evidence at the hearing of this application. In particular, the following oral evidence of Mr Rayner shows that his fibromyalgia condition did not have a “severe” impact on activities requiring physical exertion or stamina in the Qualification Period:
· Mr Rayner said that he could perform some light household duties “with difficulty” in the Qualification Period. For example, he said he could dry dirty dishes or fold laundry but his wife normally did those tasks for him as he tended to drop and break things;
· Mr Rayner said that in the Qualification Period he could walk from the carpark into a shopping centre without assistance and walk around a shopping centre without assistance, but, in doing so, he has to take regular breaks and sit down and rest (and “have a coffee or something”); and
· Mr Rayner said that in the Qualification Period he could use public transport without assistance (and although not relevant to the functional impact of his fibromyalgia condition in the Qualification Period Mr Rayner told the Tribunal that he had caught the train from home into town for the purpose of the hearing of this application).
3. Prostate Cancer/Tumour
It is not in dispute that Mr Rayner’s prostate cancer/tumour condition was fully diagnosed in the Qualification Period. The relevant issue for consideration by the Tribunal is whether this condition was fully treated and fully stabilised in the Qualification Period. Based on the following medical evidence the Tribunal finds that it was not:
· In a DSP Medical Report, dated 10 April 2013, Dr Pervan diagnosed Mr Rayner with “Gleason Stage 1 Prostate Cancer” and noted the date of diagnosis as “March 2013” The report states that “Planned Treatment” was a “total prostatectomy”;
· A JCA, dated 14 May 2013, reports that a total prostatectomy had been booked and until that procedure, and further biopsies, had been undertaken the prognosis was unable to be identified;
· In a medical certificate dated 17 July 2013, Dr Foong described Mr Rayner as “going for operation”;
· In his DSP Medical Report dated 20 July 2013, Dr Foong referred to the planned robotic radical prostatectomy;
· At the JCA on 29 August 2013, Mr Rayner advised the JCA Assessors that his “total prostatectomy” was booked for “early 2014”;
· Dr Foong noted on a medical certificate dated 28 January 2014 (which post-dates the Qualification Period) that the prostate cancer was not yet fully treated as Mr Rayner was still awaiting a date for surgery;
· Mr Justin Vivian, urological surgeon, advised by letter dated 17 June 2014 that Mr Rayner was to undergo a radical prostatectomy on 7 July 2014;
· In his DSP Medical Report, dated 27 June 2014, Dr Foong referred to Mr Rayner as suffering from “aggressive” prostate cancer for which he was having surgery on 7 July 2014 and that the findings and prognosis were “uncertain”;
· The October 2014 JCA Report records that Mr Rayner had undergone the radical prostatectomy and had been discharged, following which he was admitted to hospital as a result of an infection and subsequently suffered further complications. Mr Rayner also confirmed that he was awaiting PSA and urologist review scheduled for January and July and reported post-operative tenderness; and
· In his medical certificate, dated 24 January 2015 (which post-dates the Qualification Period), Dr Foong referred to Mr Rayner as suffering “ongoing stresses with prostate cancer - pains on and off in the lower abdomen”.
Because Mr Rayner’s prostate cancer/tumour condition was not fully treated and fully stabilised in the Qualification Period it cannot be allocated any impairment points under the Impairment Tables.
4. Skin Cancer/Tumour
It is not in dispute that in 2004 Mr Rayner suffered a melanoma on his right forearm which was surgically removed at that time.
However, there is no evidence that Mr Rayner was suffering from the skin cancer/tumour condition during the Qualification Period. Even if he was and was fully diagnosed in the Qualification Period, it was, based on the relevant medical evidence, not fully treated and fully stabilised in the Qualification Period such that it does not attract any impairment points under the Impairment Tables.
The first occasion on which the medical evidence refers to Mr Rayner’s skin cancer/tumour condition is Dr Foong’s DSP Medical Report, dated 20 July 2013, wherein Dr Foong noted “...melanoma stage 4 2002’”as a condition which is generally well managed and causes limited or minimal impact on Mr Rayner’s ability to function. The October 2014 JCA Report reported no symptoms and no functional impact arising from this condition.
5. Tinnitus
An audiological assessment of Mr Rayner, dated 12 September 2013, refers to “severe tinnitus”. Further, the October 2014 JCA Report states that Mr Rayner reported using hearing aids intermittently as he got infections in his ears and suffered from subsequent vertigo.
In the absence of any further medical evidence regarding Mr Rayner’s tinnitus condition in the Qualification Period, including, specifically, its impact on Mr Rayner’s functional capacity in the Qualification Period, the Tribunal finds that Mr Rayner’s tinnitus condition was not fully diagnosed, fully treated and fully stabilised in the Qualification Period and cannot be allocated any impairment points under the Impairment Tables.
6. Rectal disorder (piles)
In his DSP Medical Report, dated 27 June 2014, Dr Foong noted “piles – bleed” as being a condition which is generally well managed and caused limited or minimal impact on Mr Rayner’s functional ability. Further, the October 2014 JCA Report notes that there was no evidence in Mr Rayner’s medical reports of any treatment in respect of this condition.
In the absence of any further medical evidence regarding this condition in the Qualification period, including, specifically, its impact on Mr Rayner’s functional capacity in the Qualification Period, the Tribunal finds that Mr Rayner’s rectal disorder (piles) condition was not fully diagnosed, fully treated and fully stabilised in the Qualification Period and cannot be allocated any impairment points under the Impairment Tables.
7. Diverticular disease
In his DSP Medical Report, dated 27 June 2014, Dr Foong noted Mr Rayner had “diverticulitis - sore abdo...” but that it was a condition which was generally well managed and caused limited or minimal impact on Mr Rayner’s functional ability. Further, the October 2014 JCA Report notes that there was no evidence in Mr Rayner’s medical reports of any treatment in respect of this condition.
In the absence of any further medical evidence regarding this condition including, specifically, its impact on Mr Rayner’s functional capacity in the Qualification Period, the Tribunal finds that Mr Rayner’s diverticular disease condition was not fully diagnosed, fully treated and fully stabilised in the Qualification Period and cannot be allocated any impairment points under the Impairment Tables.
8. Shoulder and upper limb condition
In his DSP Medical Report, dated 20 July 2013, Dr Foong referred to widespread pains in Mr Rayner’s shoulder and lower back which is generally well managed and causes limited or minimal impact on Mr Rayner’s ability to function.
A JCA report, dated 29 October 2014, notes that there was no evidence in Mr Rayner’s medical reports of any treatment in respect of this condition. That JCA report also referred to Mr Rayner as having reported inflammation within his hands which was being treated with Inocid.
In his further DSP Medical Report, dated 27 June 2014, Dr Foong referred to “OA shoulder/lower back” under the same diagnosis as Mr Rayner’s fibromyalgia condition: refer to the discussion on Mr Rayner’s fibromyalgia condition in paragraphs 50 and 51 above.
Based on the medical evidence, it is unclear whether Mr Rayner suffers from a shoulder and upper limb condition which is unrelated to his fibromyalgia condition. If he does, there is no evidence establishing that this shoulder and upper limb condition was fully diagnosed, fully treated and fully stabilised in Qualification Period. Therefore, this condition cannot be assigned any impairment points under the Impairment Tables.
9. Skin disorder (dermatitis)
A JCA report, dated 4 March 2015 (which post-dates the Qualification Period), records that Mr Rayner suffers from dermatitis, primarily affecting his hands.
There is no evidence before the Tribunal establishing that Mr Rayner’s skin disorder (dermatitis) was fully diagnosed, fully treated and fully stabilised in the Qualification Period. Consequently, this condition cannot be assigned any impairment points under the Impairment Tables.
10. Nervous system disorder (bruxism)
It is not in dispute that, as a symptom of his anxiety/depression condition, Mr Rayner suffered a bruxism condition which was fully diagnosed, fully treated and fully stabilised in the Qualification Period. The relevant issue for consideration by the Tribunal is whether Mr Rayner’s bruxism condition can be assigned any impairments points under the Impairment Tables in the Qualification Period.
The Impairment Tables provide for an assessment of impairments arising from diseases that affect the mouth under the banner of “digestive conditions”. The “Introduction” to Table 10 of the Impairment Tables (Digestive and Reproductive Function) provides that:
·Table 10 is to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.
·Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestine (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.
No points can be assigned under Table 10 of the Impairment Tables where there is “no” functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition. This will be the case where:
(1)The person is not usually interrupted at work or other activity by symptoms of personal care needs associated with a digestive or reproductive system condition.
Dr Kevin Siebel, dentist, provided an undated report in which he referred to Mr Rayner’s oral health as having deteriorated over a ten year period due to “anxiety and a depressive emotional status”. Dr Siebel described Mr Rayner as suffering from chronic bruxism which causes constant chronic facial pains, restoration fractures and tooth damage. Dr Siebel also reported that treatment and oral health instruction has been provided but Mr Rayner’s “poor mental health status” may continue to influence the bruxism.
In a JCA report, dated 4 March 2015 (which post-dates the Qualification Period), Mr Rayner was reported as having indicated that his mouth was sore such that he cannot eat beef or meat and his mouth gets easily infected and that teeth have decayed, he has had root canal and has pain and bleeding of his gums.
Even it were the case that Mr Rayner’s bruxism condition was fully diagnosed, fully treated and fully stabilised in the Qualification Period, there is no evidence before the Tribunal that Mr Rayner’s bruxism condition had any functional impact on work-related or daily activities in the Qualification period. As such, this condition cannot be assigned any impairment points under Table 10 of the Impairment Tables.
Conclusion – Mr Rayner’s total impairment points
For the above reasons, the Tribunal finds that Mr Rayner’s attracted a total of 15 impairment points under the Impairment Tables in the Qualification Period, namely 5 points under Table 5 for his anxiety/depression condition and 10 points under Table 1 for his fibromyalgia condition. Consequently, Mr Rayner ‘s impairments did not attract at least 20 points under the Impairment Tables and he did not satisfy s 91(1)(b) of the SSA in the Qualification Period. This does not mean that Mr Rayner will not be successful in claiming DSP in the future, were he to lodge a fresh claim with Centrelink.
Does Mr Rayner have a “continuing inability to work” for the purposes of s 94(1)(c) of the SSA in the Qualification Period?
Since the Tribunal has found that Mr Rayner’s impairments did not attract an impairment rating of 20 pints or more under the Impairment Tables in the Qualification Period it is unnecessary for it to consider whether Mr Rayner had a “continuing inability to work” (as defined in s 94(2) of the SSA) for the purposes of s 94(1)(c) of the SSA at that time.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
I certify that the preceding 77 (seventy seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ...........[Sgd].............................................................
Administrative Assistant
Dated 14 March 2016
Date of hearing 9 March 2016 Applicant In person Representative for the
RespondentMr A Burgess Solicitors for the Respondent
Sparke Helmore Lawyers
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