Sampson Allan Mitchell and Secretary, Department of Social Services
[2015] AATA 122
•5 March 2015
[2015] AATA 122
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0163
Re
Sampson Allan Mitchell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 5 March 2015 Place Adelaide The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - whether applicant's condition is fully diagnosed, fully treated and fully stabilised - whether applicant's conditions attract 20 points or more on the Impairment Tables during the assessment period - decision under review affirmed.
LEGISLATION
Social Security Act 1991, s94
Social Security (Administration) Act 1999, s41 and 42
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
5 March 2015
INTRODUCTION
Mr Mitchell applied for the disability support pension (DSP). The application was received by Centrelink on 30 July 2013. Centrelink rejected the claim. Mr Mitchell applied to the Social Security Appeals Tribunal (SSAT) for a review. On 6 December 2013 the SSAT affirmed Centrelink’s decision.
Mr Mitchell applied to the Administrative Appeals Tribunal for a review and in his reasons for application he stated:
“since my illness was diagnosed all my doctors have told me not to work. This has impacted me physically, mentally and financially to the point of absolute despair.”
Mr Mitchell suffered from three conditions that are relevant to the DSP claim. They are rectal cancer, cavovarus feet deformity and atrial fibrillation.
LEGISLATION AND ISSUES
Section 94 of the Social Security Act 1991 (the Act) states that a person is qualified for DSP if:
(a)The person has a physical, intellectual or psychiatric impairment;
(b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);
(c)The person has a continuing inability to work.
Mr Mitchell has to satisfy those criteria on the date of his application or within 13 weeks following. The relevant assessment period in this case is 30 July 2013 to 29 October 2013 (ss 41 and 42, Schedule 2 Social Security (Administration) Act 1999). A rating can only be given to an impairment if the condition which causes it is permanent. A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and fully stabilised, and is more likely than not to persist for more than two years: clause 6(3) and clause 6(4) Impairment Tables.
The respondent accepted that s 94(1)(a) of the Act regarding physical impairment is satisfied. The respondent conceded that Mr Mitchell’s condition of feet deformity was fully diagnosed, treated and fully stabilised and that 10 impairment points should be assigned to it. The respondent did not concede that Mr Mitchell’s heart condition and rectal cancer were fully diagnosed, treated and stabilised at the date of the DSP claim or within 13 weeks of that date, that is, during the assessment period.
The Tribunal must determine if any of Mr Mitchell’s impairments can be allocated an impairment rating under the Impairment Tables. If any of them can be rated, the question is whether he has 20 impairment points or more and if he does, whether there is a continuing inability to work as defined by the Act.
At the hearing Mr Mitchell represented himself and gave oral evidence by telephone.
CONSIDERATION
Feet deformity
Mr Mitchell had worked consistently throughout his adult life. He was self-employed in a floor surfacing business and also worked as a carpet salesman. He ceased working in October 2010 and not by choice. A report from an orthopaedic surgeon, Dr Dracopoulos dated 16 September 2010[1] confirmed that Mr Mitchell had problems with his feet. In particular, examination revealed: “… quite marked cavovarus feet which clawing of the toes particularly on the right”. X-rays confirmed the deformity. Mr Mitchell tried using orthotics. In evidence he said that he did not like them. That was confirmed in the report by an orthopaedic surgeon Dr Dracopoulos who added that early arthritic changes were likely and the feet were “worn out from many years of hard work”. Dr Dracopoulos suggested to Mr Mitchell:
“… if he is not finding any relief with the orthotics and in fact feels that it is worse with them in then perhaps he should try coming out of the orthotics even though this is counter intuitive. Other than that I think all he can look at is fish oil as an anti-inflammatory and perhaps start looking to early retirement. I really don’t think any surgery in this setting is likely to be successful.”
[1] Exhibit 1, T10 page 124.
Those comments accurately reflected the situation. Mr Mitchell abandoned the orthotic. He exercised his feet regularly. For example he would stand on tiptoes for ten minutes every day. He changed shoes two to three times per day. He would walk as far as he could. Generally that was about 100 metres and then he needed to rest. He could stand for about 5 minutes. His feet hurt when he was in bed. He gave up work because of the suffering that he endured with his feet.
Dr Goh was Mr Mitchell’s general medical practitioner. He provided four reports which were received in evidence. A consistent theme in the reports was that Mr Mitchell suffered pain in both feet and the pain was aggravated by walking. Mr Mitchell also consulted a podiatrist and a chiropractor on occasions for extensive treatment. Dr Goh confirmed that the problems with the feet would slowly deteriorate with age. Dr Goh also stated that Mr Mitchell could not tolerate standing for long periods or walking for any distances exceeding 100 metres.
Table 3 of the Impairment Tables concerns lower limb function. A moderate functional impact on activities using lower limbs attracts a rating of 10 points for difficulties such as walking far from home and inability to stand for more than 5 minutes. There is extensive evidence to conclude that the condition involving Mr Mitchell’s feet was fully diagnosed, treated and stabilised at the time of the DSP claim. A rating of 10 impairment points is appropriate under the criteria set out in the Impairment Tables.
Rectal Cancer
Mr Mitchell gave evidence about suffering from rectal cancer. The condition was diagnosed in April 2013. He underwent chemotherapy and radiation treatment between May and August 2013. During the period of that treatment Mr Mitchell said that he felt “lousy and weak”. He endured significant problems with rectal urgency, fatigue and lethargy on a daily basis.
Mr Mitchell was referred to a colorectal surgeon Dr Tonkin. The Tribunal received three reports from Dr Tonkin in evidence. Dr Tonkin first saw Mr Mitchell on 23 April 2013 and diagnosed rectal cancer. Mr Mitchell underwent a pre-surgery course of chemotherapy and radiotherapy. An oncologist, Dr Bishnoi, gave evidence about the pre-operative therapy and its effects during that time
In a report dated 3 February 2015,[2] Dr Tonkin summarised the details of the surgery and its aftermath, stating that Mr Mitchell:
“… went on to surgery on the 5th of September 2013. He had an open ultra low anterior resection with covering loop ileostomy. He recovered well from that and had a further period of about 5 months of Adjuvant chemotherapy.
Following completion of his chemotherapy he had his ileostomy closed on the 5th of February 2014. Following that he has recovered well but has had ongoing issues with erratic bowel function which is quite expected following resection of the rectum. This consists of faecal urgency and frequency and also a situation known as clustering where he may have to return to the bathroom on numerous occasions in short succession to use his bowels. He is coping with this but it does limit his activities as he needs to be able to be close to a toilet most times.
These symptoms are gradually improving and may continue to do so for another 6 months or so but he will never return to what we would expect to be a normal bowel function. This is quite expected following his surgery.
…”
[2] Exhibit 5.
Mr Mitchell gave evidence about the complications which followed the surgery in September 2013 and required nursing attention. Medical treatment for a hernia was also required. Mr Mitchell endured significant problems with a colostomy bag. He was going to the toilet up to 20 times per day. Although there was slow, occasional improvement over many months, the effects were unpleasant, unpredictable and distressing. They interfered with routine activities of daily living and caused Mr Mitchell to be virtually house-bound.
At the time that Mr Mitchell made the DSP claim, he had not undergone surgery for rectal cancer. The DSP claim was lodged on 30 July 2013. The surgery took place on 5 September 2013. Further surgery occurred on 5 February 2014
An impairment rating under the Impairment Tables can only be assigned to a condition causing impairment under s 94(1)(b) of the Act if it is permanent. A condition can only be considered permanent if it has been fully diagnosed, fully treated and stabilised.
Under clause 6(5) of the Impairment Tables, a decision about whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if the criteria in clause 6(6) of the Impairment Tables are met, namely:
“(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.”
At the time of lodging the DSP claim and in the assessment period that followed, the evidence is clear that the condition of rectal cancer was not fully treated and fully stabilised. The assessment period is for 13 weeks from the date of the DSP claim, on 30 July 2013, to 29 October 2013. Significant medical intervention was still scheduled and would take place several months after the assessment period. It is clear from the evidence of Mr Mitchell and the medical evidence from Dr Tonkin, Dr Goh and Dr Bishnoi that the rectal cancer was not fully treated and stabilised during the assessment period. In those circumstances the Tribunal does not consider that a rating from the Impairment Tables can be given in relation to rectal cancer.
Heart Condition
Mr Mitchell gave evidence about problems with his heart while he was in hospital in September 2013 following surgery for rectal cancer. He said that he felt as though he was having a heart attack. He struggled with a number of episodes while he was in hospital at that time. However treatment was successful and the condition was apparently well managed and subsequently caused minimal problems.
Mr Mitchell acknowledged that the heart problem was treated successfully and was substantially confined to the period when he was in hospital in September 2013.
A Job Capacity Assessment report dated 25 September 2013[3] stated that the cardiac condition (atrial fibrillation) was generally well managed and no specific, functional impacts were noted.
[3] Exhibit 1, T18 page 192.
It is clear on the evidence that no impairment points can be attributed to the heart condition.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined, the Tribunal finds that Mr Mitchells’ feet condition was fully diagnosed, treated and stabilised at the time of the DSP claim. The Tribunal finds that the applicable rating for that condition is 10 points.
As the Tribunal concludes that the rectal cancer was not fully treated and stabilised during the assessment period, no points can be allocated. Similarly, no points can be given for the heart problem which Mr Mitchell temporarily suffered.
Accordingly, the Tribunal finds that Mr Mitchell does not have impairment or a combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period. This means that Mr Mitchell does not meet the requirements of s94(1)(b) of the Act and is not qualified in the assessment period for the DSP. It follows that it is not necessary to consider whether Mr Mitchell had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
Mr Mitchell applied for age pension which he has received since 2 December 2013. As he stated, however, in a letter to the Tribunal,[4] he pursued the appeals because he believed firmly that he qualified for the DSP as it was clear to him that his health problems prevented him from working. However, for the purposes of the DSP, Mr Mitchell’s circumstances do not meet the requirements in the legislation as at the time of the DSP claim and in the relevant period of assessment that followed.
[4] Exhibit 4.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson .....................[Sgd]...................................................
Administrative Assistant
Dated 5 March 2015
Date(s) of hearing 29 January and 26 February 2015 Advocate for the Respondent Mr A Parker Solicitors for the Respondent Department of Human Services
0
0
0