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

[2020] AATA 3984

Rechter and Secretary, Department of Social Services (Social services second review) [2020] AATA 3984 (12 October 2020)

Division:GENERAL DIVISION

File Number:          2019/4440

Re:Terri Rechter   

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member
 

Date:12 October 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – pension allowed upon internal review from a certain date – whether pension payable before that date – conditions including Menieres disease  – whether fully treated and diagnosed – qualification period – medical appointment – prescription of already tried medication – self-reporting – whether severe  functional impact – decision affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

D Cremean, Senior Member

12 October 2020

BACKGROUND

1. The Applicant, Ms Terri Rechter, seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 24 June 2019.

2. The decision affirmed a decision made on 28 July 2017 by the Respondent, the Secretary for the Department of Social Services, rejecting the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 6 July 2017.

3. In her claim form applying for DSP, the Applicant listed her illness as “Meniere’s disease”.

4. The Centrelink Officer decided that the Applicant was not eligible and her claim for DSP was rejected.

5. On 28 December 2017, the Applicant made a new claim for DSP citing “Meniere’s disease”.

6. Following this, on 27 February 2019, an Authorised Review Officer (“ARO”) decided to allow the Applicant’s claim for DSP but with effect only from 21 December 2017.

7. Hence, although the Applicant seeks review of the decision affirmed by Tier 1, it is only the period between 6 July 2017 and 21 December 2017 that is in issue.

   HEARING

8. A hearing in this matter was conducted over two days on 11 May 2020 and 18 May 2020. The Applicant was represented by her husband Mr Stephen Rechter, and the Respondent was represented by Mr K Sypott, a lawyer from the Australian Government Solicitor.

9. Mr Rechter gave affirmed evidence by telephone and Mr Sypott asked questions of him in cross-examination.

10. No other witnesses were called by either party.

    LEGISLATION

11. DSP is payable under the Social Security Act1991 (Cth) (“Act”) in accordance with s 94(1) which relevantly provides:

    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;

    …

12. The Impairment Tables referred to are those mentioned in s 94(1)(b) of the Act and are set out in the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“Tables”). A points impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.[1]

    [1] See ss 5(2)(b) of the Tables.

13. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent.[2] In order for the condition to be permanent, it must be fully diagnosed, treated and stabilised.[3] Another criterion is that the condition must be corroborated.[4]

    [2] See subsection 6(3)(b) of the Tables.

    [3] See subsection 6(4) of the Tables.

    [4] See subsection 6(5)(a) of the Tables.

    ISSUES

14. It was not in dispute before Tier 1 or before this Tribunal that the Applicant suffers from a condition which satisfies s 94(1)(a) of the Act. I am satisfied on the evidence in any event that the Applicant satisfies s 94(1)(a) of the Act.

15. The issue in this proceeding is whether the Applicant satisfies s 94(1)(b) of the Act – that is, whether she qualifies for an impairment rating of 20 points or more under the Tables. If I find that she does, the issue is then whether she also satisfies s 94(1)(c) of the Act.

16. To be satisfied that the Applicant meets the requirements of s 94(1)(b) of the Act, I must be satisfied that her condition is permanent. In turn, this requires me to be satisfied that her condition is fully diagnosed, treated and stabilised and that her condition is corroborated.

17. These are all matters I must consider as at the date of her application or within 13 weeks thereafter – that is, from 6 July 2017 until 5 October 2017. This is called the “qualification period”.

18. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

19. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter.

20. The Applicant contended that the decision under review should be set aside and that she satisfies all the requirements of s 94(1) of the Act so far as it applies to her and therefore the decision under review should be set aside in respect of the period in issue, which is from 6 July 2017 and 21 December 2017.

21. The Respondent, on the other hand, contends that the Applicant does not satisfy

    
    

    s 94(1)(b) of the Act, but if she does, she does not satisfy s 94(1)(c), and accordingly the decision under review should be affirmed.

    EVIDENCE

    (a) Hearing on 11 May 2020

22. Mr Rechter gave evidence that he is the Applicant’s carer.

23. In his evidence, Mr Rechter addressed the Reasons given by Tier 1 for affirming the decision under review.

24. He explained that the reason that the Applicant returned to Dr Havea for further reporting was because he was the medical practitioner who diagnosed the Applicant with Meniere’s disease in 2002.

25. Mr Rechter made reference to treatment by Dr Georgeos and explained that the Applicant had been attending the Lowndes Street Medical Clinic all her life. He also explained that she had been prescribed Serc tablets for some time but was no longer taking them.

26. In cross-examination, Mr Rechter explained that the Applicant’s condition was a “lifelong process” and that it had been developing from a very early age. He said he had known the Applicant since she was 9 years old. He said it seemed she suffered from motion sickness and that progressed to a point where she could not dance: “If I spun her or anything like that, it would make her feel ill.”

27. He spoke of a family holiday in Hawaii where she became very ill on a boat trip out to a reef: “She got so bad that… her muscles went into a state of spasm and she went like a plank, as hard as a plank”. He said that her toes and her hands curled so much that “her nails were stabbing into her palm and cutting into her”. He said she even “started to lose the ability to speak”. This was all happening while she was on the boat. He said that on that boat trip he “actually thought she was going to die, her system completely closing down”.

28. Mr Rechter said that the Applicant’s hearing had been progressively getting worse over the years since 2002. He spoke of her symptoms when a Meniere’s attack is about to happen: “Her skin actually turns black, or a black/grey, and her ears start to ring”. He said that at this point “she has to lay down, whether it’s a toilet cubicle or wherever”.

29. Mr Rechter said the Applicant’s condition is “lifelong”: “it’s just progressively getting worse, and it has gotten to the point now where she virtually can’t hear from that ear at all”.

30. Mr Rechter was then asked questions about the Applicant’s medication, including the drug Serc. At one stage the Applicant was placed on both Serc and Moduretic. She was then taken off Serc. However, Moduretic brought on hypertension in the Applicant. Later, in 2017, she was placed back on Serc; she was then taking both Serc and Moduretic. Her treating doctor even increased the dose of Serc, but the Applicant’s symptoms were not improving with it, so she was taken off it permanently and now only takes Moduretic, for which she receives a prescription every month.

31. Mr Rechter said that part of the Applicant’s recommended course of treatment includes avoidance of tea, coffee or alcohol and reduced salt intake.

32. The matter was adjourned to allow for certain medical confirmations.

    (b) 18 May 2020

33. On the second day of hearing, Mr Rechter gave further evidence about the Applicant’s condition, having had a consultation with Dr Georgeos. Dr Georgeos confirmed that the Applicant is not being treated with Serc.

34. In resumed cross-examination, Mr Rechter explained again that Serc had been tried on the Applicant, and then doubled in dosage, but the prescription was ultimately discontinued.

35. Mr Rechter agreed that, as in the report dated 26 September 2017, the Applicant had daily episodes of vertigo, intolerance to loud noise and decreased hearing.

36. Mr Rechter said the Applicant’s condition had worsened since 2002 in that episodes of vertigo occurred “more often”. Indeed, he said that from 2002 until about 2010 episodes were more frequent, “severely so”. In 2010, he said, the Applicant was bedridden for two weeks. But he agreed that over time, since 2002, the Applicant’s condition has worsened in terms of severity of symptoms. He said the Applicant’s symptoms were also getting “noticeably” worse in the period 2002 to 2010.

37. Mr Rechter agreed that, at the consultation on 26 September 2017, Dr Havea prescribed Prednisolone, which Mr Rechter said he believed was a steroid. He also agreed that at that time Dr Havea started the Applicant on Serc with a dosage of 16 mg per day.

38. Mr Rechter agreed that the Applicant next went to see Dr Havea on 7 November 2017. He agreed that, during the period from August to October 2017, her Meniere’s disease was worsening.

39. Mr Rechter agreed that in November 2017 Dr Havea increased the dosage of Serc to 16 mg twice per day. However, in a report of 26 February 2018, Dr Havea concluded that Serc was not improving the Applicant’s condition and he discontinued her prescription and she has not taken it since.

    SUBMISSIONS

40. The Respondent filed a Statement of Facts, Issues and Contentions.

41. The Respondent indicated that they conceded that, if the Applicant’s functional impairment was permanent, then it warranted an impairment rating of 20 points for severe functional impairment under Table 11 (Hearing and other Functions of the Ear).

42. However, the Respondent submitted that to be regarded as permanent the Applicant’s condition needed to be fully diagnosed, fully treated and fully stabilised within the qualification period. Mr Sypott said the “central issue” in the matter is whether the Applicant’s condition during that period was fully treated and fully stabilised.

43. Mr Sypott’s submission on behalf of the Respondent was that the Applicant’s condition during that period was not fully treated or fully stabilised, primarily because of the further Serc trial undertaken by Dr Havea (near the end of the qualification period) but also because Prednisolone was prescribed and a further hearing test was to be undertaken. Moreover, the surrounding circumstances to that treatment were “one of a worsening disease” which indeed had been worsening ever since 2002. For these reasons, the Respondent submitted that the application must fail.

44. In his submissions in reply, Mr Rechter said that he did not consider that the fact that the treatment given by Dr Havea in September 2017 was not fully undertaken during the qualification period, was, in his words, “a problem at all”. He said the Applicant clearly had the condition and had been undergoing “continuous treatment” for it in accordance with a treatment plan since 2002.

45. As regards Dr Havea, even though the review of the Applicant’s condition was not fully completed within the qualification period, he reached the same conclusion, namely, “that the Serc didn’t do anything to assist…” Consequently, no other treatment plan was devised. He said: “I think that proves without a doubt that she did actually have a treatment plan”.

46. He recognised he had erred in stating the prescribed amounts of Serc; he had confused Serc with Thyroxin for the Applicant’s “thyroid trouble”.

47. He said, with reference to a passage out of the Reasons for Decision given by Tier 1: “I’m sure Dr Georgeos’ letter proves that … in actual fact she has been treated, has been stabilised and her condition will be for a period of two years”.

48. For these reasons, Mr Rechter submitted that the Applicant must succeed.

    CONSIDERATION

    Section 94(1)(a)

49. In view of the concessions of the Respondent, and in light of the evidence before me, I find the Applicant satisfies s 94(1)(a) of the Act in suffering the condition Meniere’s disease.

50. I am confining my consideration to that condition. I learned that the Applicant apparently has a thyroid condition for which she takes medication and may have some issue of a personality disorder. These do not enter my consideration.

    Section 94(1)(b)

    Permanency

51. The Respondent has conceded, rightly, that the Applicant’s condition is fully diagnosed.

52. The Respondent has not conceded, however, that the Applicant’s condition has been fully treated and fully stabilised.

53. Mr Rechter explained that the condition is one which is long standing, starting in 2002, and continuing.  It is the one condition simply getting worse over that time. The condition has been treated with various medications, including Moduretic, Serc, and Prednisolone, by experienced medical practitioners, including Dr Havea.

54. I have read and considered all the T documents, particularly those directly relating to the Applicant’s condition.

55. There is some merit in what Mr Rechter says. The Applicant’s condition is the one continuous condition remaining the same, only worsening, over time. It has not developed into another condition and has never gone away and then come back. Nor, moreover, it seems, will it ever disappear. Furthermore, if I understand the evidence correctly, Serc had been trialled before on the Applicant and was found to be of no use.

56. On the other hand, the qualification period is the period of 13 weeks from the date the claim is made, and it is during that qualification period that the condition must be not only fully diagnosed, but also fully treated and fully stabilised.

57. I am unable to make a finding that the Applicant’s condition was fully treated and fully stabilised during the qualification period. That is because on 26 September 2017, which was during the qualification period, the Applicant consulted with Dr Havea and, after that consultation, the drug Serc was tried again. The significant point is that Serc was tried during the qualification period. Prednisolone was also prescribed during the qualification period.

58. It was only after the qualification period that Dr Havea found that Serc was not a worthwhile prospect of treatment and therefore discontinued that prescription.

59. But that, as I say, was a decision he made which was outside the qualification period.

60. Consequently, during the qualification period the Applicant’s condition was not yet fully treated and not yet fully stabilised. It would be different if, at the consultation on 26 September 2017, Dr Havea had said no further drug treatments were an option and thus were not recommended. That would mean the Applicant’s condition was fully treated and had fully stabilised.

61. However, Dr Havea prescribed Serc (and Prednisolone) on 26 September 2017 and the outcome of that treatment (that Serc was of no utility) was not known until after the qualification period ended. That means that the Applicant’s condition was not only not fully treated during the qualification period, it was also not fully stabilised during the qualification period because when the drugs were prescribed, that outcome was not known. It was only known afterwards. In my view, trialling a drug treatment during a qualification period that turns out to be of no benefit after that period does not mean that during the qualification period the condition was, therefore, fully treated and fully stabilised.

62. This means that the Applicant does not satisfy s 94(1)(b) of the Act in that her condition was not fully treated and fully stabilised during the qualification period.

    Points rating

63. Because the Applicant does meet the requirements of s 94(1)(b), it follows that the condition is not assigned any points under the Tables.

    Section 94(1)(c)

64. Because the Applicant does not satisfy the requirements of s 94(1)(b), it is unnecessary for me to make any findings about whether she would meet the requirements of s 94(1)(c).

    DECISION

65. For the reasons above, the decision under review is affirmed.

66.     I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate

Dated: 12 October 2020

Dates of hearing:	13 December 2019 and 25 February 2020
Advocate for the Applicant:	S Rechter
Advocate for the Respondent:	K Sypott
Solicitors for the Respondent:	Australian Government Solicitor