Root and Secretary, Department of Social Services (Social services second review)
[2016] AATA 364
•1 June 2016
Root and Secretary, Department of Social Services (Social services second review) [2016] AATA 364 (1 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4615
Re
Joshua Root
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 1 June 2016 Place Canberra The decision under review is set aside. Mr Root was qualified for DSP on 6 May 2015. The matter is remitted to the Secretary to determine Mr Root’s entitlements consistent with this decision.
.................................[sgd].......................................
Mr S. Webb, Member
Catchwords
SOCIAL SECURITY – cancellation of Disability Support Pension – qualification – impairments – rating of impairments resulting from permanent conditions – meaning of ‘assistance with day to day activities’ – continuing inability to work – assessment of work capacity – decision set aside
Legislation
Social Security Act 1991 (Cth) ss 27, 94
Social Security (Administration) Act 1999 (Cth) ss 63, 80
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Mr S. Webb, Member
1 June 2016
Joshua Root has myalgic encephalomyelitis, commonly known as chronic fatigue syndrome. He claimed and was granted a Disability Support Pension (DSP). After some years, a review was conducted and new rules governing the assessment of work-related impairment for DSP were applied. In the result, Mr Root’s DSP was cancelled. He is not satisfied with this result and has pressed his rights to review, thus far without success.
Subsequently, Mr Root lodged a fresh claim for DSP.[1] Issues relating to the determination of this claim are not presently before the Tribunal.
[1] ST5.
Issues
As the decision under review relates to the cancellation of Mr Root’s DSP on 6 May 2015 (the cancellation date), the issue to be decided is whether he qualified for DSP on that day. The qualification requirements for DSP are set out in s 94 of the Social Security Act 1991 (the SS Act). For Mr Root to qualify for DSP on the cancellation date, it must be established that he had –
(a)a physical, psychological or intellectual impairment,
(b)impairments attracting a rating of 20 or more points under the Impairment Tables, and
(c)a continuing inability to work 15 or more hours per week.
Under s 27(3) of the SS Act, if the Secretary has given Mr Root a notice under s 63 of the Social Security (Administration) Act 1999 (the Administration Act), the Impairment Tables that were in force when the notice was given must be applied.
The Secretary issued a notice to Mr Root on 19 August 2014 that complies with the requirements of s 63.[2] The notice was ‘given’ to Mr Root in the usual course of the post. It follows that the Impairment Tables that must be applied when determining whether Mr Root met the qualification requirements for DSP on the cancellation day are those set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination).
[2] T4.
IMPAIRMENT
It is quite clear, and there is no dispute, that Mr Root has suffered from chronic fatigue syndrome for several years.
Dr Moreton, Mr Root’s treating general practitioner, confirmed that Mr Root was suffering from myalgic encephalomyelitis on the cancellation date and the condition is presently persisting. This is a medical condition that causes a number of symptoms and impairments. On the medical reports of Dr Moreton and Michelle Clarke, a psychologist, I am satisfied that he has the following impairments –
(a)chronic physical and mental fatigue that becomes worse with activity;
(b)myalgia that becomes worse with activity;
(c)sleep disturbance;
(d)cognitive impairments affecting memory, attention, concentration, planning, visuo-spatial function and mental processing speed.
There is also no dispute that Mr Root suffers from hypertension and chronic mild normocytic anaemia. The evidence of Dr Moreton establishes the presence of these conditions as of the cancellation date.
On 19 April 2010, Dr McClintock, a renal physician, reported that Mr Root had diagnoses of chronic fatigue syndrome as well as hyperkalaemia secondary angiotensin receptor blocker, and “longstanding myalgia and hypertension”.[3] The present materials do not establish that hyperkalaemia secondary angiotensin receptor blocker was persisting on the cancellation day.
[3] ST6.
RATING OF IMPAIRMENTS
Under the 2011 Determination, the rules set out in Part 2 must be applied. This means that, under s 6, ratings may only be assigned under the Tables set out in Part 3 to impairments that result from ‘permanent’ conditions (being medical conditions that are fully diagnosed, fully treated and fully stabilised) where the impairment is likely to persist for more than two years.
I should say immediately that there is only very scant evidence of Mr Root’s hypertension and chronic mild normocytic anaemia. The reports of Dr Moreton are sufficient to establish the presence of these diagnosed conditions, and that the conditions were generally well-managed and had a limited or minimal impact on Mr Root’s ability to function on or about the cancellation day. On these materials, I am unable to determine whether, at that time, each condition was fully treated and fully stabilised, or whether any resulting impairment was likely to persist for more than two years.
It follows that even if these medical conditions cause functional impairment, which is not presently established, no rating can be assigned under the Impairment Tables. Even if Mr Root’s hypertension was to be accepted as ‘permanent’, and the report of Dr McClintock in ST6 lends support to this proposition, the present evidence is not sufficient to allow a rating greater than zero under the Impairment Tables.
While the medical and other evidence of Mr Root’s myalgic encephalomyelitis is somewhat lacking in detail, it is sufficient to establish that this medical condition is fully diagnosed, fully treated and fully stabilised, and therefore ‘permanent’ for the purposes of the 2011 Determination. Dr Moreton’s evidence is that the condition commenced in or about 2000, and it has followed a fluctuating course, with significant relapses in 2004-2005 and in 2008. Since then, Dr Moreton reports that the condition “has been relatively stable in recent years despite following the Marshall Protocol and a graded activity program”.[4]
[4] T9 folio 47.
I note that on 19 May 2015 Dr Moreton reported that the functional impact of the condition was likely to persist for 13 to 24 months and that the effect of the condition on Mr Root’s ability to function within two years was expected to fluctuate and was uncertain. Dr Moreton explained that this assessment of time was made “with a tincture of hope”, but in fact the condition has been stable since mid-2012 and its likely duration is uncertain – Mr Root has biochemical markers of chronic disease and there are no known alternative medical treatments available than those he has undertaken.
The Secretary’s submission about the rating of chronic fatigue syndrome must be rejected. Under s 5(2)(d) of the 2011 Determination, the Tables are for the purpose of assigning ratings ‘to determine the level of functional impact of impairment and not to assess conditions’. The assessment to be made is not in respect of the chronic fatigue syndrome condition but rather in respect of impairments resulting from that condition that are likely to persist for more than two years.
The evidence of Dr Moreton and Ms Clarke is that Mr Root’s myalgic encephalomyelitis results in the following impairments –
(a)chronic physical and mental fatigue that becomes worse with activity;
(b)myalgia that becomes worse with activity;
(c)sleep disturbance;
(d)cognitive impairments affecting memory, attention, concentration, planning, visuo-spatial function and mental processing speed.
On balance, I am satisfied that these impairments were likely to persist for more than two years from the cancellation date.
That being so, under s 10(3) of the 2011 Determination, it is necessary to assign ratings for these impairments under relevant Impairment Tables. And in so doing, to apply the rules set out in each Table.
Chronic physical and mental fatigue that becomes worse with activity
This impairment is to be assessed under Table 1 – Functions requiring Physical Exertion and Stamina.
The Secretary says that Mr Root’s chronic fatigue had a moderate functional impact on activities requiring physical exertion and stamina under this Table. The Secretary asserts that evidence of the functional impact of Mr Root’s impairments in respect of activities requiring physical exertion or stamina is consistent with the rating criteria at the 10 point level.
While it may be accepted that Mr Root meets the criteria set out in (1)(a) and (b)(i) at the 10 point level, it is less clear that he meets the remaining criterion in 1(b)(ii). The test is whether he is ‘able’ ‘to perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).’ There is a question of construction here – how is the test of being able to perform tasks of the particular kind to be understood?
The rating criteria must be construed in the context of Table 1 and the rating scale it provides. Rating criteria addressing the ability to perform tasks are set out at the 0 point, 5 point, 10 point, 20 point and 30 point levels.
Points
Descriptors0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(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; or
(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 stationary nature for a continuous shift of at least 3 hours.
30
There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.
(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
As can be seen, at one end of the scale the person ‘has no difficulty completing physically active tasks around their home and community’, whereas at the other end of the scale the person ‘has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours’. If, on assessment of the evidence, an impairment falls between two rating levels, under s 11(1)(c), ‘the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied’.
Furthermore, s 11(3) provides that –
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
In Mr Root’s case, I am satisfied that he is able to perform work-related tasks of a clerical, sedentary or stationary nature for short periods of up to two hours duration. On 19 May 2015, Dr Moreton reported –
“Very limited capacity to function. Typically has to sleep for 11-12 hours a day. Minimal activity (eg 2 hours of computer work or gentle housework) exhausts him… On a ‘bad’ day he rests or sleeps for most of the day. On a good day he can do some brief, light housework or a limit of I.T. work for up to two 2-hours sessions.”[5]
[5] T9 folio 47.
Considering Dr Moreton’s oral evidence, which largely corroborates the detailed account given by Mr Root, I think it can reliably be concluded that if Mr Root attempts activity totalling four hours per day, he is likely to suffer post-exertional exhaustion for the succeeding two or three days. On Dr Moreton’s evidence, this is a clinical feature of Mr Root’s condition.
This means that he satisfies the rating criterion in respect of work-related tasks at the 20 point level. But he does not satisfy the criteria set out in (1)(a) at that level. It follows that his impairment falls between the 10 point and 20 point levels and must be assigned the lower rating.
I am satisfied that this impairment has a moderate impact on Mr Roots capacity to undertake activities and it is appropriately assigned a rating of 10 points under Table 1.
Myalgia that becomes worse with activity
The extent to which myalgia impacts upon Mr Root’s ability to function is not entirely clear. Mr Root’s evidence is that this increases with physical or mental activity. This evidence is consistent with that given by Dr Moreton.
Under s 9(b), chronic pain is taken to be a ‘condition’. Whether or not Mr Root’s myalgia is within that description of chronic pain is far from clear. To my mind it is not – in all likelihood it is the result of chronic fatigue syndrome, a fully diagnosed, fully treated and fully stabilised medical condition. There is no Table dealing specifically with pain. To the extent that Mr Root’s myalgia causes functional impairment, the impairment must be assessed under the Table most relevant to the area of function affected.
On balance, I think that his myalgia has a functional effect on activities that require physical exertion and stamina. This is most appropriately assessed under Table 1.
There is a question whether two impairments resulting from a single condition may be each assigned a rating under the same Table. To my mind, this is not permissible if the functional impairments are the same or are best combined.
For this reason, I would not assign an additional rating for Mr Root’s myalgia impairment under Table 1 even if there was sufficient evidence for that purpose, which there is presently not.
Sleep disturbance
The degree to which disturbed sleep is an assessable impairment under the Impairment Tables is not clear. I think that Mr Root’s altered sleep pattern, including his need to sleep or rest during the day, is best assessed in relation to fatigue, which I have assessed under Table 1. I do not think that any additional rating can be given in respect of sleep disturbance.
Cognitive impairments affecting memory, attention, concentration, planning, visuo-spatial function and mental processing speed
These impairments must be assessed under Table 7 – Brain Function. The rating criteria at the 0 point, 5 point, 10 point and 20 point levels follow:
Points
Descriptors
0
There is no functional impact resulting from a neurological or cognitive condition.
(1) The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.
5
There is a mild functional impact resulting from a neurological or cognitive condition.
(1) The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a) memory;
Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.
(d) planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e) decision making;
Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f) comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
10
There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20
There is a severe functional impact resulting from a neurological or cognitive condition.
(1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a) memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.
(b) attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c) problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d) planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e) decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g) visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h) behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
Detailed evidence of Mr Root’s cognitive impairments is set out in the reports of Ms Clarke. In her assessment, the impairments warrant a rating of 10 points under Table 7. Dr Moreton concurs with this assessment. These are matters that I must determine on the present evidence.
The Secretary says that a rating of 5 points is appropriate. As I understand the Secretary’s submission (which was very far from clear), the phrase ‘day to day activities’ refers to activities of a cognitive character involving brain function, and the word ‘assistance’ should be taken to mean assistance with cognitive function provided by another person. If this is a correct understanding of the submissions made, there are a number of matters to consider.
The phrase ‘day to day activities’ is not given any special meaning. I do not see any good or compelling reason to construe this phrase narrowly such that it only refers to cognitive or brain function activities. Quite what form activities of that kind might take is not clear to me. I think the better interpretation is the ordinary meaning of the phrase in common usage. The phrase is broad in scope, and it may well include basic activities such as might relate to personal hygiene, household chores, shopping, financial transaction or other activities that a person might commonly undertake on a day to day basis. Activities of these kinds can be seen in the examples set out in Table 7.
Each such activity involves cognitive functions to some degree – a person cannot manage their own personal hygiene without engaging cognitive processes; remembering to put out the rubbish, or how to use a household appliance involve brain functions. The same can be said of all day to day activities.
Properly construed, the test is in relation to the need, or lack of it, for ‘assistance’ to complete or undertake day to day activities. The scaled criteria relating to this test can be understood in this way. At the 5 point level the person is ‘able to complete most day to day activities without assistance’, whereas at the 10 point level the person ‘needs occasional (less than once a day) assistance with day to day activities’ and at the 20 point level the person ‘needs frequent (at least once a day) assistance and supervision’.
The word ‘assistance’ is not defined, but it can readily be understood as referring to aid, help or assistance with, in this context, day to day activities. Once again, I would construe the meaning of ‘assistance’ broadly. While in the vast majority of cases ‘assistance’ could be expected to involve the involvement of another person, in a modern world where robotics and highly technical appliances are becoming increasingly common, I would not construe ‘assistance’ to exclude assistance provided by a machine. That said, I do not think that ‘assistance’ in this context refers to aids that a person might commonly employ, such as lists, notes or similar memory aids. There is no bright dividing line, and where it falls in any particular case will depend upon the particular facts and circumstances. Presently, it is not necessary to go further with this point.
The evidence of Dr Moreton is that Mr Root requires assistance with day to day activities in the form of reminders and encouragement to undertake day to day activities, retaining focus and concentration, problem-solving and navigation. This is commonly provided by his parents, with whom he resides. Examples include Mr Root requiring assistance to navigate to unfamiliar places and when following directions, and in order to retain focus, attention and concentration once he becomes mentally fatigued.
Having regard to Ms Clarke’s reports, and having heard Mr Root’s evidence, I think it is quite clear that he experiences difficulties with many tasks involving visuo-spatial, organisation and quick mental processing functions. These difficulties increase with activity – while he may be able to do something without assistance initially, after a while he requires help to continue with or to complete the activity.
In the Secretary’s submission, Mr Root does not require assistance with an activity that he can stop doing when he is fatigued. I reject this submission. The scaled test of assistance with day to day activities at the 5 and 10 point levels under Table 7 may properly be understood in terms of need – at the 5 point level no assistance is needed to complete most day to day activities, whereas at the 10 point level occasional assistance with day to day activities is a matter of ‘need’. The test of need may be satisfied whether or not the person actually obtains assistance. Thus, with respect to Mr Root the tests on this point are - is he able to complete most day to day activities without assistance: (5 point level); and does he need occasional assistance with day to day activities: (10 point level)?
The clear evidence is that he cannot complete most day to day activities without assistance – he stops many such activities when he becomes physically and mentally fatigued, and afflicted by increasing myalgia, after a short period. The evidence establishes that in these circumstances, if he attempts to persist with the activity his symptoms become worse. In such circumstances, it cannot be said that he is able to complete the activity without assistance. To my mind, the clinical assessment of Dr Moreton is entirely consistent with the evidence given by Mr Root and the assessment of Ms Clarke. I am satisfied that Mr Root needs occasional assistance with day to day activities. This means he satisfies the first rating criteria at the 10 point level. The present evidence does not support a finding that he requires supervision – he does not satisfy the rating criteria at the 20 point level.
As to the remaining rating criteria at the 10 point level, the evidence of Ms Clarke and Dr Moreton clearly establishes that Mr Root has moderate difficulties with memory, attention and concentration and visuo-spatial function. Mr Root relies on memory aids, including in relation to the taking of his medication four times each day. Dr Moreton explained that in a clinical consultation setting, he finds it necessary to re-focus Mr Root as his attention wanders and his concentration wanes. Dr Moreton and Ms Clarke identified Mr Root’s difficulties with visou-spatial functions. Dr Moreton explained that Mr Root has difficulty navigating to a new or unfamiliar destination while driving alone, such that he requires assistance from another person or it is necessary for him to stop to gather his thoughts and to reorient himself with the aid of a navigation device. Mr Root gave evidence that he experiences difficulty with judging distance and speed, and when this occurs it prevents him from driving, even on familiar routes.
It is also established, but perhaps beside the present point, that Mr Root has lesser difficulties with problem-solving, planning and comprehension, mostly in relation to his reduced mental processing speed. This affects his capability to undertake computer programming tasks and ‘projects’ in collaboration with volunteers online. His evidence is that he can do work of this kind, but only for short periods and slowly. I accept that this is a cause of frustration for Mr Root, who was previously employed as a computer engineer to 2008 when his myalgic encephalomyelitis flared and he was forced to cease employment – he has not worked in paid employment since.
In sum on this point, I am satisfied that Mr Root’s impairments have a moderate functional impact on his cognitive function and he has moderate difficulties with several cognitive functions listed at the 10 point level.
It follows that a 10 point rating is appropriate under Table 7.
IMPAIRMENT RATING
That being so, Mr Root’s assessable impairments attract a total rating of 20 points. This means that he satisfies the second essential qualification criterion for DSP under s 94(1)(b) of the SS Act.
CONTINUING INABILITY TO WORK
The Secretary relies on the evidence of ‘Michelle’, a rehabilitation counsellor, in a Job Capacity Assessment report dated 2 April 2015. The Assessor reported that Mr Root had a baseline work capacity of 8 to 14 hours per week and that his work capacity would increase to 15 to 22 hours per week within two years with intervention. The interventions were “alternative medical treatment options”, “counselling” and “vocational rehabilitation”.[6]
[6] T8 folio 41.
Furthermore, the Secretary argued that ‘Michelle’s” evidence should be given greater weight than evidence of Mr Root’s work capacity given by Dr Moreton. The reason for this was said to be that Michelle had specialist expertise in respect of rehabilitation, whereas Dr Moreton did not.
I must say that this is a rather courageous submission in the circumstances.
Dr Moreton is a legally qualified medical practitioner. He is Mr Root’s treating doctor and has been so since 2005. Michelle is not a legally qualified medical practitioner and she has no clinical involvement with Mr Root.
Review of the documents reveals that Michelle has provided two Job Capacity Assessment Reports and one Employment Services Assessment Report in respect of Mr Root. On 1 March 2011, she reported that Mr Root had a baseline work capacity of 0 to 7 hours per week and that this would increase to 8 to 14 hours within two years with intervention, namely “assistance through a DMS program”.[7]
[7] T13 folio 73.
On 20 June 2012, Michelle reported that Mr Root had a baseline work capacity of “8+ Hours per week” and that his capacity for work within 2 years with intervention was “8+ Hours per week”.[8] The intervention was said to be “Vocational rehabilitation”.
[8] T11 folio 65.
The Secretary asserts that the change in Michelle’s assessment of 2 April 2015 was based on Dr Moreton’s input. Dr Moreton’s evidence is that Mr Root’s condition and extent of his capacity has been stable since mid-2012. He explained that this was in the range of 8 to 14 hours per week, based on Mr Root undertaking two 2-hour blocks of light work (on ‘good’ days) up to three days per week. The doctor emphasised that this would not be sustainable or consistent with proper management of Mr Root’s myalgic encephalomyelitis, as he would be likely to experience post-exertional exhaustion and increased myalgia in the period of two to three days after undertaking activity of that kind. Furthermore, Dr Moreton explained that Mr Root has an average of only 1 good day each week and groups of ‘bad’ days, when he cannot do anything much at all, every fortnight.
When asked whether he was aware of any alternative medical treatment for Mr Root’s myalgic encephalomyelitis, Dr Moreton explained that there is no medical treatment available other than that Mr Root has obtained. He did not consider acupuncture or aromatherapy to be viable forms of alternative treatment. He told me that he has additional skills as a counsellor and that he has counselled Mr Root since 2005. I accept Dr Moreton’s evidence on these points.
No explanation has been provided and no evidence has been adduced by the Secretary to explain the change in Michelle’s assessment of Mr Root’s prospective work capacity in April 2015.
I prefer the evidence of Dr Moreton to that of Michelle. If Michelle has specialist expertise in rehabilitation, as well she might, there is no present evidence to support her assessment on medical issues in Mr Root’s case. The assessment of his medical condition and his medical prognosis is central to an assessment of his capacity for work. If vocational rehabilitation intervention is expected to increase his work capacity within two years, one might expect to see the result of that from similar intervention recommendations in 2011 and 2012. But no such improvement is apparent on the medical evidence.
In sum on this point, I am reasonably satisfied that Mr Root’s work capacity as of 6 May 2015 was 8 to 14 hours per week and, at that time, there was no reasonable prospect of his capacity to undertake paid work of any kind increasing within two years. For this reason, I find that he had a continuing inability to work 15 or more hours per week at that time.
This means that he satisfies the third essential qualification criterion for DSP under s 94(1)(c) of the SS Act.
The Secretary informed me, correctly, that the participation in a program of support requirements are not applicable in this case, as Mr Root’s DSP was cancelled.
CONCLUSION AND DECISION
Mr Root satisfied the qualification criteria for DSP under s 94 of the SS Act as of 6 May 2015. It follows that he was entitled to DSP at that time.
The decision under review is set aside. Mr Root was qualified for DSP on 6 May 2015. The matter is remitted to the Secretary to determine Mr Root’s entitlements consistent with this decision.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ...............................[sgd].........................................
Associate
Dated 1 June 2016
Date of hearing 12 May 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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