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

[2019] AATA 98

Robinson and Secretary, Department of Social Services (Social services second review) [2019] AATA 98 (6 February 2019)

Division:GENERAL DIVISION

File Number(s):      2017/5282

Re:Ian Robinson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N Manetta

Date:6 February 2019

Place:Adelaide

The Tribunal affirms the decision under review.

..........................[sgnd]...................................

Senior Member N Manetta

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment –medical conditions not fully diagnosed, treated and stabilised during the assessment period – decision under review affirmed.

LEGISLATION

SOCIAL SECURITY ACT, 1991 (Cth) s 94

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Secretary, Department of Social Services v Sziva [2019] FCA 23

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member N Manetta

6 February 2019

1. This is an application by Mr Ian Robinson seeking a review of a Level 1 decision of this Tribunal, which affirmed earlier decisions taken in the respondent’s Department to refuse his application for a disability support pension (DSP) dated 11 July 2016.

   CRITICAL QUESTION

2. Hearing the matter afresh on the evidence before me[1], I note that my task is to decide whether Mr Robinson was qualified for the DSP at the time he filed his application in July 2016 or within 13 weeks of that time at the latest. At the hearing before me, Mr Robinson represented himself; Ms Odgers represented the respondent.

   [1] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

   STATEMENT OF CONCLUSION

3. I have decided to affirm the decision under review. As Mr Robinson represented himself and is not legally qualified, I shall express myself as plainly and simply as possible.

   APPLICANT’S PERSONAL HISTORY

4. Mr Robinson is 58 years of age. He has lived all but the first four years of his life in Australia. He attended primary and secondary school in Adelaide. He has two children, now aged 16 and 17, but is divorced from his wife, and he gave evidence that he now lives alone.

5. After completing his schooling, Mr Robinson had various jobs over the years including as an assistant electrician (helping out his brother-in-law), a truck driver, welder, orchard worker, and earthmoving driver, operator, and supervisor.  Some of these jobs have been with family members, others with employers. He also worked for many years as a panel beater and spray painter, and it is to this work in particular (together with his exposure to fumes from a petrol drum while working as an earthmover) that Mr Robinson attributes what has become for him a very serious condition (namely, multiple chemical sensitivity syndrome).

6. In 2009, Mr Robinson fell from a truck and injured his right knee, ankle and back. He returned to work shortly thereafter. In 2010, he developed sleep apnoea and anxiety. He left work and began to receive WorkCover payments. In 2015, he accepted a lump sum payout from WorkCover to settle his future rights to ongoing payments.  At that time, he also received a superannuation disability payout.

   REASONS

   Multiple Chemical Sensitivity Syndrome

7. Mr Robinson nominated a number of conditions that he maintains impair his ability to function normally and, therefore, to work. As his case was presented to me, however, it is clear that Mr Robinson attributes his impairments to multiple chemical sensitivity syndrome for the most part. I have taken the following description of the syndrome from The Merck Manual (19^th edition, 2011) at page 3444:

   No universally accepted definition exists, but multiple chemical sensitivity syndrome is generally defined as the development of multiple symptoms attributed to exposure to any number of identifiable or unidentifiable chemical substances (inhaled, touched, or ingested) in the absence of clinically detectable organ dysfunction or related physical signs.

8. Mr Robinson indicated in his evidence that the syndrome is the “driver of everything” and has progressively worsened over the last eight years. I accept for the purposes of deciding his application that multiple chemical sensitivity syndrome (or “idiopathic environmental intolerance” as it is also known) is a recognisable medical condition.

9. Mr Robinson filed his application for a DSP in July 2016. In assessing his claim for a pension, I may only have regard to conditions which were fully diagnosed, treated, and stabilised as at the date of the application and during the 13 weeks after the application was filed: see, for example, most recently, Secretary, Department of Social Servicesv Sziva [2019] FCA 23 at [18] - [27]. A “fully diagnosed, treated, and stabilised condition” is defined in Part 2, section 6 of the relevant tables.[2]

   [2] Contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

10. Mr Robinson’s multiple chemical sensitivity syndrome was not diagnosed until well after Mr Robinson’s claim was lodged with the respondent. Mr Robinson makes no mention of the condition in his application of July 2016 precisely because he did not realise at that time that he had the condition. As I am constrained to consider Mr Robinson’s entitlement to a DSP as at the date of his application and in the 13 weeks thereafter, I may not take this condition into account.

    Lower Back Disorder

11. Mr Robinson asked me to take into account the sciatica or lower back disorder he has suffered since his injury in 2009, when he fell from a truck.   Here, I note that Mr Robinson only takes Panadol.  He has rejected the option of an operation (in his own words, “he doesn’t want to know about it”) and he has concerns about medicines due to his multiple chemical sensitivity syndrome. I note that his treating doctor, Dr Chua, indicates that he may need facet joint injections[3], and it would appear Mr Robinson has not received these.

    [3] See T40, p 228.

12. In the circumstances, I do not find Mr Robinson’s lower back disorder was fully diagnosed, treated and stabilised in the 13 weeks after the making of his DSP claim nor indeed was it fully diagnosed, treated, and stabilised as at the time of the hearing before  me.

    Depression and Anxiety

13. Mr Robinson asked me to take into account his depression and anxiety. Mr Robinson has declined to try medication because he fears an adverse reaction. It is clear on the evidence that Mr Robinson’s anxiety and depression have not been fully diagnosed, treated, and stabilised. Mr Robinson’s refusal to try at least some medication is not reasonable, in my opinion, because it is not justified by the medical evidence before the Tribunal.  I note that in her report dated 15 February 2018, Dr Harris, Mr Robinson’s treating doctor for his multiple chemical sensitivity syndrome, notes:

    He really struggles with diesel fumes, petrol fumes, cleaning products, perfumes, phthalates. Unfortunately, he is also very sensitive to exposures (sic) to substances that he can’t always identify, such as when shopping and going to doctor’s appointments.[4]

    [4] See Exhibit A1.

14. This report does not support Mr Robinson’s submission that his multiple chemical sensitivity syndrome includes all medicines.

15. It would appear that part of Mr Robinson’s fear of medication is caused by his anxiety disorder which medication might help control. I wish to make that point expressly to help Mr Robinson in the rational decisions he needs to make in order to assist himself. As I have said, on my review of the evidence, his decision not to try medicines so as to improve his mental health and functioning is not justified by professional diagnosis.  I would encourage him to seek professional help for his anxiety and depression as these have emerged as serious problems for him.  His refusal to try medicines to alleviate his anxiety and depression will mean that these conditions will continue to affect his life substantially.

    OTHER CRITERIA  

16. There are other criteria governing the DSP that need to be satisfied in this case, including whether Mr Robinson has engaged in a program of support (which is a mandatory requirement unless he is allocated 20 points from one table). I need not address these requirements in the circumstances, but I note that they, too, appear to present serious obstacles to Mr Robinson.  Finally, I should note that Mr Robinson referred to a number of minor conditions. I shall not set these out. It is quite clear that these minor conditions would not result, either singly or in combination, in an allocation of at least 20 points, and in any event certainly not 20 points from one table so as to avoid the program-of-support requirements. I need not consider them further.

    SUMMARY

17. In sum, therefore, in respect of Mr Robinson’s DSP claim, I have concluded that the major conditions causing Mr Robinson serious impairment in his daily functioning were not fully diagnosed, treated, and stabilised at the time of his application or within 13 weeks thereafter. Accordingly, the Tribunal has no choice but to leave them out of account.

    FORMAL DECISION

18. The Tribunal affirms the decision under review.

    I certify that the preceding 18 (eighteen)

    paragraphs are a true copy of the reasons

    for the decision of Senior Member N A Manetta

    ……………[sgnd]………………..

    Administrative Assistant Legal

    Date:   6.02.2019

    Dates of hearing:                   7 September 2019

    Counsel for Applicant:            Self-represented

    Counsel for Respondent:       Ms L Odgers, Department of Human Services