Sealy and Secretary, Department of Social Services (Social services second review)
[2015] AATA 771
•24 August 2015
Sealy and Secretary, Department of Social Services (Social services second review) [2015] AATA 771 (24 August 2015)
Division
GENERAL DIVISION
File Number
2014/6032
Re
Russell Sealy
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 24 August 2015 Place Brisbane The decision under review is affirmed.
..........................[Sgd]..............................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECUTITY – pensions – disability support pension – whether conditions are fully
diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or
more under the impairment tables – decision affirmed
LEGISLATION
Social Security Act 1991 s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member A C Cotter
2 October 2015
A decision in these proceedings was delivered orally together with reasons at the conclusion of the hearing. The applicant subsequently requested written reasons be supplied. These written reasons were distilled from the transcript of the hearing.
Russell Sealy was diagnosed with Cutaneous Lupus in 2006. At the time, his specialist dermatologist confirmed that there was only evidence of cutaneous disease and that there was a 10 to 15 per cent risk of it progressing to the more serious Systemic Lupus. The prescribed treatment was a combination of photoprotection and topical medicine.
Some eight years later, in January 2014, Mr Sealy lodged a claim for Disability Support Pension in respect of “lupus”, saying that it had spread to his face, thereby playing havoc at job interviews. He stated in his claim form that the disease had drained him physically and mentally to the point that he had to lie down for hours at a time. The accompanying medical report completed by his general practitioner, Dr Bruce Hodges, described the condition as Cutaneous Lupus Erythematosis, and the current symptoms as Vitiligo and lesions on his arms. The impact on Mr Sealy’s ability to function was listed as poor endurance and skin lesions, with the likelihood of continuing for more than 24 months.
The claim was rejected on the ground that Mr Sealy did not have an impairment rating of 20 points or more under the Impairment Tables.
The decision to decline the claim was affirmed, first by an Authorised Review Officer, and then by the Social Security Appeals Tribunal. Dissatisfied with that outcome, Mr Sealy sought a review of the latter decision by this Tribunal.
Now, when the matter first came on for hearing on 9 June this year, it readily became apparent that Mr Sealy’s general practitioner had not seen the “Dear Doctor” letter that had been prepared by the Secretary’s lawyer in an endeavour to elicit further information concerning Mr Sealy’s condition and the symptoms and functional impact of the condition. Consequently, the hearing was adjourned to 24 August 2015 to enable Dr Hodges to consider the letter and respond.
In response to the question whether Mr Sealy was referred to any other specialist at the relevant time (being the time of claim of 6 February 2014), and whether any further treatment was recommended for the condition, Dr Hodges replied that Mr Sealy was not a patient of his at the clinic at the time of diagnosis, he only having first presented at that clinic in January 2014. However, Dr Hodges went on to say that Mr Sealy:
should have been monitored on a regular basis to detect any deterioration in his condition and the occurrence of skin cancer as this can happen in the damaged skin of his recurring rash.
When asked about Mr Sealy’s treatment, Dr Hodges commented:
Lupus is an autoimmune disease affecting connective tissue and in Mr Sealy’s case mainly the skin. Mr Sealy has resisted suggestions to see a Specialist to monitor his condition as there is no definitive cure for this disease so without intervention the complaint will slowly deteriorate and the symptoms worsen
The treatment for this condition consists in observation and monitoring signs of deterioration which can be treated if caught in the early stages, so in Mr Sealy’s case maintaining stability of symptoms would be of utmost importance so there would be little change to function.
And then in paragraph 7, he says:
As previously noted Mr Sealy has resisted seeing a Specialist for further treatment and continues to do so. So the condition has not been fully treated and definitely there will be no functional improvement.
Dr Hodges concluded by saying that in his opinion the condition was fully diagnosed but not fully treated and stabilised at the date of claim, although I agree with the Secretary that he was probably using those expressions as understood in the medical profession and not under the technical terms defined under the Impairment Tables.
Now, before considering the issues, there are a couple of sections or key provisions that I want to highlight for the record.
Section 94 of the Social Security Act sets out the qualifications for DSP.
Apart from residency and age qualifications, the principal criteria are that the applicant has a physical, intellectual or psychiatric impairment, that the applicant’s impairment is of 20 points or more under the Impairment Tables and the applicant has a continuing inability to work.
An applicant’s eligibility for DSP is to be assessed at the date of claim, in this case 6 February 2014, or within 13 weeks after that date. Therefore, the relevant period for me to consider is between 6 February 2014 and 8 May 2014.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years. For a condition to be considered permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner, been fully treated and fully stabilised, and more likely than not, in light of the available evidence, to persist for more than two years.
A condition is fully stabilised if :
(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 of 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.
Reasonable treatment is defined as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.
The Secretary accepts that Mr Sealy’s Lupus condition is fully diagnosed. Consequently, the first of the requirements for DSP is satisfied.
In light of that concession, the issues that remain for me to determine are whether during the relevant period - namely the one from February to May 2014 - Mr Sealy had an impairment rating totalling 20 points or more under the Impairment Tables.
That raises a threshold question of whether his condition could have been considered at the relevant time to be fully treated and fully stabilised. If it was not, no points can be assigned under the tables. If Mr Sealy is found to have had 20 points or more, the next question that needs to be determined is whether he had a continuing inability to work.
Based on Dr Hodges’ most recent report, I have difficulty in concluding that Mr Sealy’s condition was fully treated at the relevant time. Up to and including the relevant period - that is the period February to May last year - there is no evidence of Mr Sealy having been reviewed by a specialist since Dr Darben’s initial diagnosis in 2006. Nor does it seem that his condition had been regularly monitored by a medical practitioner during that time. While such treatment would not cure the condition, it may have at least slowed or mitigated the symptoms and their severity.
That therefore raises the additional question as to whether Mr Sealy’s condition was fully stabilised at the relevant time. A condition can be considered fully stabilised if the person has not undertaken reasonable treatment for the condition but there is a medical or other compelling reason for him or her not undertaking reasonable treatment.
Mr Sealy says that there is no cure for Lupus and that the only medication available causes side effects which are worse than the disease itself. Mr Sealy knows from experience because his twin sister, who died from Systemic Lupus, used all the medications available.
Notwithstanding that explanation and the fact that Mr Sealy was not prepared to see a specialist and was not prepared to take the medication, I note that he is now following Dr Hodges’ advice and is in fact seeing a specialist and taking medication.
While that is encouraging from the treatment and medical perspective, it is unfortunately not relevant to my consideration of the claim at the relevant date. Turning back to the relevant period - and that is again, as I say, 6 February 2014 to 8 May 2014 - I do not consider it was unreasonable to expect Mr Sealy to have consulted a specialist and have his condition professionally monitored during that period. As the Secretary notes, that would not have been an invasive treatment. For those reasons, I do not consider that Mr Sealy’s condition was fully treated and fully stabilised at the relevant period.
Therefore, I am unable to assign any points to his impairment in respect of the condition at the relevant time. That means that Mr Sealy was unable to satisfy the second requirement for DSP at the relevant time, namely the securing of 20 points or more under the Impairment Tables.
In light of that conclusion, it is unnecessary for me consider whether he had a continuing in ability to work.
That means that the decision under review is affirmed and therefore Mr Sealy’s application for review is unsuccessful.
I appreciate that this is particularly disappointing and indeed, very frustrating. However, I have to apply the law as is prescribed by the legislation, and apply the principles applicable at the relevant time, having regard to the available evidence and the conditions at the relevant time. That is the reason why I am unable to agree to assign any points in respect of the impairment at that period.
I understand what Mr Sealy has said about his frustrations and his lack of energy in being able to pursue another claim. However, I sincerely believe that this result should not discourage him from pursuing a new claim for DSP in the future.
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter .........................[Sgd]...............................................
Associate
Dated 2 October 2015
Dates of hearing 9 June 2015 and 24 August 2015 Date final submissions received 14 August 2015 Applicant In person Solicitors for the Respondent Department of Human Services - Program Litigation and Review Branch
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Disability Support Pension
-
Impairment Ratings
-
Conditions of Pension
0
0
1