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

[2017] AATA 27

Sammut and Secretary, Department of Social Services (Social services second review) [2017] AATA 27 (17 January 2017)

Division:GENERAL DIVISION

File Number            2015/5272

Re:Albert Sammut

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:17 January 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – medical conditions of asthma, nasal polyps, sinusitis and adjustment disorder – functional impairment rating less than the required 20 points – s 94(1)(b) not satisfied – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999 -Schedule 2, subclause 4

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

17 January 2017

1. Mr Sammut lodged a claim for the disability support pension (DSP) on 27 October 2014.  Following a job capacity assessment (JCA) undertaken on 19 November 2014 and acting on the recommendations of that report a Centrelink officer rejected the claim on 27 November 2014.  Mr Sammut sought review of the decision and an authorised review officer (ARO) for the Secretary, Department of Social Security (the Secretary) affirmed the rejection on 29 May 2015.  Mr Sammut sought review of this decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal, (1^st Tier) lodging his application on 7 July 2015. 

2. The matter was heard on 3 September 2015 and based on the evidence before the Tribunal the Member assigned an impairment rating of 10 points for Mr Sammut’s chronic asthma and then diagnosis of chronic obstructive pulmonary disease under Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) relating to Functions requiring Physical Exertion and Stamina and 5 points under Table 5 relating to Mental Health Function for Mr Sammut’s adjustment disorder with depression and anxiety. As a result he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act) and the criteria for payment of DSP as he did not have the requisite total of 20 points under the impairment tables. 

3. The hearing before the General Division of the Administrative Appeals Tribunal took place on 28 November 2016, Mr Sammut having lodged an application for further review on 8 October 2015.  Mr Sammut gave his evidence by telephone as he has relocated to a country address in order to reduce his asthmatic attacks which were provoked by environmental contaminants. 

4. Mr Tim de Uray (a lawyer from the FOI and Litigation Branch of the Department of Human Services) appeared for the Secretary. The respondent had provided the Tribunal with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and these were assigned the Exhibit No R1 (the T-documents).  These also included Supplementary T‑documents relating to more up to date reports generated in 2016 outside the period of review but assisting in the clarification of Mr Sammut’s diagnoses. 

   BACKGROUND TO THE APPLICATION

5. Mr Sammut has suffered from asthma since his mid-teens and has received appropriate treatment since.  Despite this long standing illness he completed year 11 and then undertook TAFE college training in aircraft maintenance engineering. He worked in that role for a period of 30 years, being employed primarily by Qantas until 2009 when he resigned. His resignation was based on his intolerance of fumes and dust and changes in temperature, particularly as he found that in the office where he worked the air‑conditioning could trigger an episode of asthma. 

6. Following cessation of employment in the aircraft industry, Mr Sammut worked for 24 to 30 hours per week repairing landscaping equipment and gardening tools for a landscaping company. He voluntarily ceased this employment in May 2013.  Once more he had found that the work exposure to fumes and dust increased the frequency of his asthma attacks.  Since ceasing work Mr Sammut has been in receipt of a newstart allowance (NSA). He lodged his claim for the DSP five months after ceasing work.

7. Mr Sammut has said to have been diagnosed with depression as part of an adjustment disorder in 1996.  This was apparently related to family and marital problems and in 2006 he separated from his wife and subsequently they divorced.  He was prescribed the antidepressant Lexapro by his general practitioner. In May 2012 the Lexapro was ceased and Pristiq was substituted by his general practitioner Dr Toma Mikhael.  Dr Mikhael regarded Mr Sammut’s depression as at 25 August 2013 to be a temporary condition likely to resolve in three to 12 months’ time.  Mr Sammut was referred to a clinical psychologist, Ms Kylie Clarke, on 4 May 2012 and Ms Clarke confirmed the diagnosis of an adjustment disorder relating to the dissolution of Mr Sammut’s marriage.  Cognitive behavioural therapy was commenced and three courses of treatment have been provided under a Medicare program.

8. As Mr Sammut’s asthma symptomatology deteriorated he was referred to respiratory physician Dr Peter Spencer and was first seen in the Western Hospital, Respiratory and Sleep Clinic on 12 February 2013.  Apart from the history of asthma since the age of 13 Dr Spencer obtained the history that Mr Sammut’s symptoms had deteriorated in the past 18 months due to chronic cough, nasal congestion and shortness of breath for which he had received several courses of antibiotics and corticosteroids.  He was using Seretide and Spiriva inhalers. 

9. A history of an abnormal sleep/wake cycle was obtained with Mr Sammut said to be sleeping for only a few hours at night and having six hour naps during the day.  At the time of this consultation Mr Sammut was still working in his landscape gardening role.  Physical examination on the day was entirely normal.  Dr Spencer altered Mr Sammut’s asthma therapy to Symbicort and commenced a short course of Prednisolone and the antibiotic Clarithromycin.  The antibiotic and Prednisolone were to be given over a period of two weeks and in the interim Mr Sammut was to undergo a CT scan of his chest and sinuses and lung function tests.

10. The CT scan of Mr Sammut’s sinuses showed marked mucosal thickening in the ethmoid sinuses and paranasal airways with mucous retention and nasal polyps.  The CT examination of the lungs was normal except for some consolidation in the lingular lobe, presumably consistent with an area of pneumonia, although sputum tests did not reveal any major infective agent.  Only mixed bacterial flora and some fungal elements were grown on culture.  A nasal spray was added to the treatment regimen.

11. Following this review appointment on 26 February 2013, Mr Sammut travelled overseas to the Philippines where he was much improved in terms of his symptomatology but on his return to Melbourne his symptoms recurred.  Once again physical examination was normal.  At this time Dr Spencer attributed Mr Sammut’s symptoms to sinusitis and nasal polyposis and organised for him to be seen by an ear, nose and throat specialist for consideration of surgical excision of the polyps and possible drainage of the sinuses. 

12. In a letter to Centrelink dated 10 September 2013, Dr Spencer provided a diagnosis of pan-sinusitis with recurrent infection and chronic obstructive airways disease secondary to asthma.  While lung function tests had been undertaken in 2013, these have not been provided to the Tribunal.  Dr Spencer recommended that Mr Sammut move to a different environment with less allergen exposure.  The Tribunal notes that in his teens or 20s, Mr Sammut underwent skin sensitivity testing for allergic reactions to a multitude of allergens and all tests were negative.

13. It would appear that Dr Spencer last saw Mr Sammut on 12 November 2013 following his attendance at Sunshine Hospital with severe dyspnoea.  This settled with oxygen therapy in the Accident and Emergency Department, following which he was discharged.  Dr Spencer was of the opinion that the severe shortness of breath had precipitated an anxiety attack and recommended a change in the antidepressant therapy aimed at better control of his anxiety.  Mr Sammut had requested the provision of home oxygen however, his arterial blood gas studies had shown normal oxygen levels and presumably normal carbon dioxide levels and thus he did not qualify for Medicare provision of oxygen. It was arranged that he would pay for this privately.  A referral was made to the Physiotherapy Department for pulmonary rehabilitation. 

14. In 2014 Mr Sammut came under the care of Dr Hoan Tran in the Western Respiratory and Sleep Clinic.  Dr Tran made a diagnosis of upper airways disease relating to nasal polyps. Repeat respiratory function testing was conducted on 14 January 2014 and revealed a very mild obstructive defect with no significant bronchodilator response.  Carbon monoxide transfer was normal as was oxygen saturation on pulse oximetry.  These results were said to show improvement compared to previous lung function tests of 8 October 2013 which have not been provided to the Tribunal.  In particular Mr Sammut’s forced expiratory volume to forced vital capacity ratio, the measure of obstructive disease, was 67 per cent normal being greater than 68 per cent.

15. The records indicate that on 26 June 2014, Mr Sammut underwent resection of nasal polyps.  The details of the procedure have not been provided and there is no indication as to whether he had surgical drainage of his ethmoid and/or maxillary sinuses.

16. A medical opinion was obtained from the Health Professional Advisory Unit.  The reports were summarised and it was concluded that Mr Sammut had mild obstructive pulmonary disease, although it is noted that the normal ratio was said to be greater than 80 per cent. This is incorrect as all text books of physiology state normal as being 68 to 72 per cent. 

17. It was concluded that Mr Sammut had not been seen by his general practitioner with any dyspnoea or infections for eight months at the time of his claim for DSP lodgement, had not attended his general practitioner since October 2014 and had not been seen by a lung specialist since February 2014.  The latter is incorrect as he was seen by Dr Tran on 25 March 2014.

18. In respect to the psychological condition Mr Sammut has attended Ms Clarke on a regular basis between 2013 and early 2015.  The Department of Human Services Advisory Unit doctor estimated that the psychiatric condition attracted an impairment rating of 5 points under Table 5 at the time of lodgement of the claim for DSP by Mr Sammut.

19. In his evidence before the Tribunal, Mr Sammut explained his frequent overseas trips which commenced in 1996 and generally occurred annually but on occasions twice a year as being visits to the Philippines, Thailand and Japan primarily for dental treatment.  He has found the cost of dental treatment in Australia beyond his means and given his lengthy employment with Qantas he is able to access cheap flights and generally goes for a period of two weeks.  He has not noted any deleterious effect on his lung function during these aeroplane flights.  Mr Sammut frequently travels with his son or since his marriage in May 2016 to a Japanese lady he travels in the company of his wife.  He occasionally travels overseas by himself.

20. Mr Sammut detailed the events that had occurred since his divorce in 2009 including the sale of his house and the purchase of a country cottage three years ago.  Prior to the purchase of the country residence out of Bendigo he had lived with his mother.  Since relocating to the Bendigo area he has only seen a local respiratory physician on four occasions in two and a half years and has noted some improvement in that there is diminution in environmentally triggered asthma attacks.  Despite this he believes that his energy levels on exertion are diminished and he becomes short of breath quicker than he did before.  Under direct questioning Mr Sammut said he could only walk 50 metres at a fast pace and would develop tightness in his chest compared to 150 metres three years ago.  At a moderate pace he can walk much further without developing symptoms. 

21. Mr Sammut continues to study for a Diploma in Horticulture, this being a correspondence course undertaken online.  Mr Sammut owns a fully portable nebulizer which he takes wherever he goes and has access to home oxygen which he uses occasionally.  He says he sees his psychologist Ms Clarke, or at least tries to see her, once a month and travels to Melbourne in order to do so, staying overnight with his mother. 

22. Mr Sammut is able to accompany his wife and perform some shopping.  He does the dishes but no vacuuming.  He does attempt manual work and accompanies his wife on social occasions such as going out to celebrate birthdays in a restaurant.  They have friends visit and stay once a month including his sons.  Mr Sammut does not do any gardening and leaves this to his wife and sons.  Generally he has been much happier and contented since his marriage in May 2016. 

23. Mr Sammut finds Prednisolone is the best means of controlling his asthma and he is well for as long as he is taking this medication, which is usually prescribed for two weeks.  He is now attending a Dr Kate Carroll, respiratory physician, in Bendigo but because of the travel distance necessitating a 50 minute drive he is only seeing her occasionally. 

24. Dr Carroll has provided a report dated 29 June 2016, advising the diagnosis of chronic asthma and sinusitis with previous nasal polyposis and depression.  Dr Carroll has noted his sleeping difficulties which leave him tired during the day and his chronic cough and sputum production which is worse at night.  Repeat lung function testing performed on 9 March 2016 confirmed the diagnosis of asthma with a forced expiratory volume in one second of 2.27 Litres which is 57 per cent of predicted normal level for a man of his size but this increased to 2.79 Litres and 71 per cent of predicted level following the inhalation of the bronchodilator salbutamol. 

25. Dr Carroll reported that Mr Sammut was able to walk on flat ground at his own pace and could only perform activities of a sedentary nature. She noted that his symptoms fluctuated and as a result productivity may be affected in an episodic manner. Dr Carroll considered his functional impairment to be moderate. She did not address the Impairment Tables.

26. Both Mr Sammut’s evidence before the Tribunal and the documentary evidence relative to his claim have been considered under BACKGROUND TO THE APPLICATION. 

    Job Capacity Assessments (JCAs)

27. Mr Sammut has undergone two JCAs, the first of these being on 5 June 2013, prior to the lodgement of his claim for DSP.  In June 2013 his assessment was conducted by a qualified social worker, a registered psychologist and an accredited exercise physiologist.  The assessors were provided with medical information that Mr Sammut had chronic obstructive lung disease, chronic asthma, pan-sinusitis and nasal polyps. 

28. Based on Table 1 relating to functions requiring physical exertions and stamina, they determined a recommended rating of 5 points, given his intermittent symptoms of mild shortness of breath and fatigue, his ability to walk to local facilities without stopping to rest, his ability to perform physically active tasks and in particular perform most work related tasks other than heavy manual labour.  While noting the presence of a mood disorder, this was not assessed as at that time there was little medical evidence to support any psychiatric diagnosis.  Mr Sammut’s work capacity at the time of assessment was considered to be 15 to 22 hours per week in a moderate semi-skilled position with minimal dust or fume exposure.

29. The second assessment occurred on 19 November 2014, following Mr Sammut’s formal claim for DSP.  This assessment was conducted by a registered psychologist and a registered occupational therapist.  On this occasion Mr Sammut’s psychiatric status was considered to be a permanent and fully diagnosed, but not treated and stabilised, adjustment disorder with mixed anxiety and depression as had been diagnosed by the clinical psychologist Ms Kyle Clarke on 4 May 2013.  The condition was being treated with Pristiq, an antidepressant prescribed by Mr Sammut’s general practitioner.  Referral to a psychiatrist was recommended. 

30. Once more Mr Sammut’s so called chronic obstructive airways disease was assessed under Table 1 as attracting an impairment rating of 5 points.  His chronic obstructive airways disease was considered to be fully diagnosed, treated and stabilised.  His baseline work capacity remained at 15 to 22 hours per week.

    RELEVANT LEGISLATION

31. The qualification for DSP is provided in s 94 of the Act which states:

    94Qualification 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

    ...

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)     if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years. ...

    a severe impairment is defined in s 94(3B) as

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    and (3C) provides for the requirement of active participation in a program of support:

    Active participation in a program of support

    (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

32. Schedule 2 of subclause 4 of the Social Security (Administration) Act 1999 provides that:

    4Start day—early claim

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    SUBMISSIONS

1. Mr Sammut, in his letter of 25 August 2016, outlined his symptomatology in detail and its impact on all aspects of his life including his functional status but also huge losses in terms of his career, marriage, family relationships and what he describes as his empire and finances.

2. Mr Sammut considered the decision-making process at both the Centrelink and the Administrative Appeals Tribunal levels as having a very narrow focus that doesn’t take into account my whole of life situation.

3. Mr de Uray relied on the detailed Statement of Facts and Contentions previously provided, noting that the Social Security and Child Support Division of the Administrative Appeals Tribunal had assigned a 10 point impairment rating for chronic obstructive lung disease/asthma under Table 1 and a 5 point impairment rating for Mr Sammut’s adjustment disorder under Table 5.  Based on the report of Ms Clarke of 2 June 2016 and her earlier reports when she was treating Mr Sammut on a regular basis, it was accepted by the Secretary that Mr Sammut’s adjustment disorder was now fully diagnosed, treated and stabilised but this was not the situation in the 13 week period under review.

4. Similarly, the report of Dr Carroll respiratory physician dated 29 June 2016 may necessitate a reassessment of the effect of Mr Sammut’s respiratory status. Dr Carroll has made a diagnosis of chronic asthma with the resultant decrease in lung volumes being totally reversible with the use of salbutamol. Mr de Uray submitted that a reassessment of Mr Sammut’s asthma as of the present time might attract a 10 point impairment rating but certainly none of the medical conditions at present or in the review period attracted a 20 point rating under a single table. He contended that during the assessment period Mr Sammut did not meet the eligibility criteria of s 94(1)(b) of the Act and therefore the decision under review should be affirmed.

5. Mr de Uray also addressed the requirement for participation in a program of support even had Mr Sammut been assessed as meeting the 20 points requirement.  Mr Sammut had not participated in a program of support over a period of 18 months in the three years prior to the submission of his claim for DSP (s 5(2) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination).  Finally it was contended that on the basis of the JCAs, Mr Sammut was capable of performing work for at least 15 hours per week, his base work capacity having been assessed at 15 to 22 hours per week.

   TRIBUNAL’S DELIBERATIONS

6. It is well established that Mr Sammut has suffered from bronchial asthma since the age of 13.  He has received treatment from the time of diagnosis and had a 30 year long career as an aeronautical engineer, working for Qantas following which he worked on a part- time basis servicing equipment for a landscaping company.  Mr Sammut resigned from both positions voluntarily, because he believed the conditions of his work provoked frequent episodes of acute asthma. 

7. In addition he has a long history of anxiety and is said to have been diagnosed in 1996 with an adjustment disorder with depressed and anxious mood, secondary to marital problems which ultimately resulted in divorce in approximately 2009.  Mr Sammut’s adjustment disorder had been treated by his general practitioner, initially with the antidepressant Lexapro and from 2012 with the antidepressant Pristiq.  He has not been referred to a psychiatrist but has received cognitive behavioural therapy from a clinical psychologist Ms Kylie Clarke since mid-2012.  He continues to see Ms Clarke.

8. As of 21 August 2014 Ms Clarke had reported good progress in that Mr Sammut was more effectively rationalising his thinking in relation to stressful circumstances.  She anticipated continuing improvement.  Ms Clarke did provide a further report within the period under assessment, stating that Mr Sammut’s mood was very low as his chronic obstructive pulmonary disease was worsening and that he had suicidal thoughts.  She regarded his mental health condition at that time to have stabilised and supported his application for the DSP.

9. At the same time his general practitioner notified an exacerbation of Mr Sammut’s depression and anxiety with an uncertain prognosis.  Prior to that date Dr Meliak had provided regular certificates indicating that Mr Sammut’s condition was expected to improve considerably within 24 months.

10. Ms Clarke has provided a more recent report dated 2 June 2016, in support of her original correspondence of 20 January 2015.  She appears to be under the impression that Mr Sammut ceased work in 2009 because of health issues whereas his actual date of cessation of all work was 2014.  She refers to his medical condition as being chronic obstructive pulmonary disease, which is continuing to decline.  While Ms Clarke was aware that Mr Sammut had shifted residence to a small property in the country she seems unaware that he has remarried and that this had had a positive and beneficial effect on his life. 

11. The medical reports relating to Mr Sammut’s underlying lung pathology are somewhat conflicting.  Initially, Dr Peter Spencer who first saw Mr Sammut in 12 February 2013, made a diagnosis of chronic asthma, chronic cough precipitated by exposure to fumes and associated nasal congestion and pan-sinusitis.  The CT scan of Mr Sammut’s lungs revealed a small area of pneumonic consolidation in the lingular segment of the left upper lobe of the lung but was otherwise normal. CT scanning of Mr Sammut’s sinuses did show severe pan-sinusitis and nasal polyps raising the probable diagnosis of upper airways obstruction.  Lung function testing was said to show evidence of obstructive pulmonary disease but these initial test results have not been provided to the Tribunal.

12. Subsequent investigation by another respiratory physician Dr Tran has confirmed the diagnosis of asthma. Repeat lung function testing showed minimal evidence of an obstructive defect.  More recently Dr Carroll in Bendigo has repeated the lung function test and this did show a reduction in the FER indicative of obstructive pulmonary disease but this was completely reversed with the inhalation of salbutamol.  These investigations suggest that he does not have a fixed obstructive disorder but that his lung function tests vary according to the level of control of his underlying asthma. 

13. Mr Sammut underwent surgery for his nasal polyps but no reports have been received as to exactly what was performed.  There is no information as to whether he has had drainage of his obstructed sinuses.  While Mr Sammut initially benefited from the resection of the nasal polyps his upper airways obstructive symptoms have recurred. 

14. In examination-in-chief Mr de Uray ascertained that Mr Sammut’s functional levels in terms of walking distances, abilities to drive, shop, perform minor household repairs were unchanged from the assessments of 2014 and 2015.  He remains able to travel overseas once or twice a year and has no problems with his breathing during these flights.  Mr Sammut considered that in some ways his respiratory function has improved in the past two and a half years and in other ways it was worse.  There was certainly less environmental triggering of acute attacks but he continued to lack energy on exertion and believed he became short of breath more quickly.  Mr Sammut agreed that since his remarriage in May 2016 he is much happier, his outbursts and loss of temper have improved and he has been more socially active.  Any heavy work however is performed by his wife or his sons.

15. Based on the reports and Mr Sammut’s evidence the Tribunal determines that the impairment rating allotted by the 1st Tier of the Administrative Appeals Tribunal on 3 September 2015 is an accurate assessment of Mr Sammut’s functional capacity for his asthma and his adjustment disorder and may in fact be somewhat generous given Mr Sammut’s evidence that he has improved in the past six months.

16. Mr Sammut clearly satisfies s 94(1)(a) of the Act in that he has chronic asthma which while apparently maximally treated is not fully controlled. He does not have fixed obstructive pulmonary disease and his adjustment disorder with depression and anxiety has of late improved. However, he does not meet the requirements of s 94(1)(b) of the Act in that these conditions attract an impairment rating of 15 points in total and not the required 20 points.

17. The Tribunal affirms the decision under review.

I certify that the preceding 49 (forty‑nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

........................................................................

Associate

Dated: 17 January 2017

Date of hearing:	28 November 2017
Applicant:	By telephone
Respondent:	In person
Advocate for the Respondent:	Mr Tim de Uray, Department of Human Services