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

[2017] AATA 1367

Smolski and Secretary, Department of Social Services (Social services second review) [2017] AATA 1367 (24 August 2017)

Division:GENERAL DIVISION

File Number:           2016/4100

Re:Samantha Smolski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:24 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – cancellation of disability support pension – conditions of chronic fatigue syndrome, joint hypermobility, fibromyalgia and irritable bowel syndrome – review of medical status – impairment rating of 10 points – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases
Freeman v Secretary, Department of Social Services (1988) 19 FCR 342

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Miss E A Shanahan, Member

24 August 2017

1.       Ms Smolski qualified for the disability support pension (DSP) on 4 May 2010, based on a 30 point impairment rating for the conditions of chronic fatigue syndrome, benign joint hypermobility, heterotopic calcification of the first metatarso-phalangeal joint on the left and suspected irritable bowel syndrome. 

2.       On 5 June 2015 the Department of Social Services (the Department) issued Ms Smolski with a program of support and medical review DSP statement for completion.  This had a return date of 4 July 2015 which was not complied with until 20 July 2015 when Ms Smolski’s section of the statement was received. The section of the statement of her treating doctor, Dr Pranadi, was completed and forwarded on 19 July 2015.

3.       Dr Pranadi advised that the conditions from which Ms Smolski suffered were chronic fatigue syndrome and fibromyalgia and that the irritable bowel syndrome and joint hypermobility syndrome as well as the newly mentioned gastritis were well controlled and caused minimal impact on her ability to function.  Following a job capacity assessment (JCA) of 14 September 2015, the Department issued a notice dated 12 October 2015 to Ms Smolski advising of the decision to cancel her DSP.  At Ms Smolski’s request, the decision was reviewed by an authorised review officer (ARO) who affirmed the decision on 18 December 2015. 

4.       Ms Smolski lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) on 17 March 2016.  At this review the diagnoses made in 2010 were accepted as still being present but in accordance with the newer Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) introduced in 2012, Ms Smolski’s recommended impairment rating was 10 points, under Impairment Table 1. As a result Ms Smolski did not meet the requirements for s 94(1)(b) of the Social Security Act 1991 (the Act) and was not entitled to the DSP at the time of its cancellation.

5. Ms Smolski lodged an application for further review with the General Division of the AAT on 5 August 2016 (AAT Tier 2). At the hearing on 2 June 2017, Ms Smolski was self-represented but assisted by her friend Mr John Rothwell. Ms Ailsa Bramley, Senior Government Lawyer with the Department appeared for the Secretary. The Tribunal had been provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  Ms Smolski gave evidence before the Tribunal with the assistance of Mr Rothwell. 

BACKGROUND TO THE APPLICATION

6.       Ms Smolski, now aged 27, was first diagnosed with chronic fatigue syndrome (CFS) in 2007/2008. This diagnosis was confirmed by specialist opinion in 2009.  Ms Smolski had suffered a viral illness in 2007 thought to be infectious mononucleosis (glandular fever), although investigations had been equivocal.  She had undertaken VCE in 2008 but was unable to complete the year, transferred to a TAFE college and then to distance study. She had been unable to meet the requirements and had difficulty acquiring computer skills.  In her earlier teens Ms Smolski had been a competitive swimmer who trained 16 hours per week.  She now teaches swimming to school children for two and a half hours once a week.

7.       In addition to CFS, Ms Smolski has been diagnosed with fibromyalgia which she believes is related to her joint hypermobility, possible irritable bowel syndrome (IBS) and intermittent gastritis. 

8.       In 2009/2010 Ms Smolski was seen by Dr R Travers, a rheumatologist, and Professor R Buchanan, both of whom confirmed the diagnosis of CFS. Her symptoms at that time were recorded as being poor sleep, severe fatigue, impaired memory and concentration difficulties, inability to perform household duties, joints giving way and according to Professor Buchanan, photophobia, sensitivity to loud noises, allodynia and past urticaria.  He questioned a vasomotor instability condition.  According to the general practitioner Dr Tai, additional symptoms were headaches, intermittent low mood, recurrent sore throat and hypersensitive muscles.  Professor Buchanan had prescribed a graded exercise program, healthy diet and vitamin supplements.  Ms Smolski was provided with psychological counselling for a period of 10 weeks in 2007 but as this was without benefit it was not repeated. 

9.       In her evidence before the Tribunal, Ms Smolski said that her current symptoms were much the same but more severe. She now does no exercise at all and spends a lot of her day in bed.  Not only does she get physically fatigued but also mentally fatigued.  Her joints are more painful than they had been in 2010 and it was normal for her to spend 10 to 11 hours per day sleeping. After she had performed her swimming coach duties she would require 13 to 14 hours of sleep.  While resting in bed during the day she watched television on her computer.  She does not engage in any household activities and her mother who also has CFS performs some housework.  Ms Smolski endeavours to follow a healthy eating plan and to count the kilojoules as she has gained a considerable amount of weight.  All her efforts to train in areas such as graphic design have failed, as according to her she just couldn’t cope with the demands of the course. 

10.     Ms Smolski avoids taking any medication but will take Panadeine if her joint or muscle pain is severe. Occasionally, will she take Endep for what she described as nerve pain. On Professor Buchanan’s advice she had commenced physiotherapy treatment at the Austin Hospital in 2010 and attended on five to six occasions. She found this made her joint and related pain worse.  Ms Smolski was currently trying to study for a certificate in business but was well behind in the course workload.

11.     Ms Smolski’s 30 year old brother has recently been diagnosed with CFS and has attended Professor Buchanan.  It is Ms Smolski’s impression that there is no new treatment for CFS and that the advice that her brother has been given is similar to the advice she received in 2010. Since her DSP was cancelled she has endeavoured to make an appointment to see Professor Buchanan again and is currently on a waiting list for an outpatient appointment. She has been on this waiting list at the Austin Hospital for three months. 

12.     In her original application for DSP, Ms Smolski claimed the condition of heterotopic calcification in relation to the metacarpo-phalangeal joint of the left great toe.  This she said had fully resolved. 

13. Ms Smolski underwent a JCA conducted by a physiotherapist on 14 September 2015. The conditions of CFS, fibromyalgia, joint hypermobility syndrome were all considered to be permanent, fully diagnosed and fully treated and as the CFS and fibromyalgia were both assessable under Table 1 of the Impairment Tables, they attracted a 10 point impairment rating. The hypermobility syndrome present since early childhood was considered well managed and causing minimal or limited impact on function and did not attract an impairment rating. At the AAT Tier 1 review the Tribunal accepted that all conditions were fully diagnosed, treated and stabilised and accepted the impairment rating of 10 points.

EVIDENCE BEFORE THE TRIBUNAL

14.     Ms Smolski’s evidence has been summarised under BACKGROUND TO THE APPLICATION. She did, however, provide the additional information that both her brother and her mother have hypermobility of their joints which suggests to me that this is a genetically determined condition and probably Ehlers-Danlos syndrome.  This has not been considered by any of the reporting doctors. 

15.     Ms Bramley cross-examined Ms Smolski at some length and ascertained that she had not seen a specialist for many years, was in the process of obtaining a new general practitioner and had not done any regular exercise for five years.  She expanded on her joint problems as becoming more painful in terms of the muscles around the joint although she had never suffered a dislocation which is a feature of this condition.  Ms Smolski advised that she did not use public transport because it was very irregular in the area in which she lived and she found it difficult to sit in one position for a long period of time or to manoeuvre past people getting on or off such transport. 

16.     Ms Bramley questioned Ms Smolski as to whether she could perhaps do three hours of teaching per day but Ms Smolski advised that she had tried to work for periods of three and a half hours but could not cope and in late 2015 had to abandon her attempts. 

17.     In relation to the treatment she had received, Ms Smolski said she was satisfied that her doctors had done their best but she was most unsatisfied with the results achieved.  It had not been suggested to her that she have a further course of psychological counselling.  Ms Smolski described her fatigue as being both mental and physical, she found it difficult to find thoughts and words and she felt she was slowing in terms of her mental function.   Mr Rothwell confirmed this deterioration, particularly in terms of her driving.  In 2008 or 2009 she had L-plates and he believed she was safe to drive for one kilometre but since then her reaction time had greatly slowed and he believed she should not drive.

18.     In an effort to ascertain her degree of fatigue, Ms Bramley asked what would happen if she washed two cups and a plate.  According to Ms Smolski, such an effort would require her to rest in bed for two hours.  Her friend John, who works part time as a freelance journalist with Bahrain News, cooks her midday meal and delivers it to her using disposable dishes which he then takes away and puts in the rubbish bin.

19.     At this stage I made the comment that she had sat at the bar table in the hearing room for two hours without any obvious distress.  This she explained was due to her having taken Panadol-extra before the hearing commenced.  Mr Rothwell confirmed that he had transported Ms Smolski to the AAT, carried all the documentation etc. and she had not had to perform any physical exertion.

DOCUMENTARY EVIDENCE

20. The Tribunal had been provided with a considerable amount of medical data arising from the period 2008 and 2009, including various reports from treating general practitioners with reference to the reports of specialists. There is no disagreement as to the diagnosis made at that time or that Ms Smolski met the requirements for DSP in accordance with the Impairment Tables then in force.

RELEVANT LEGISLATION

21.     Section 94 of the Act provides the qualification criteria for DSP and states:

94  Qualification 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; ...

Severe impairment

(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.

Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

1. As of 1 January 2012 the Impairment Tables were determined on a functional capacity as opposed to a disease criteria.

   SUBMISSIONS

   23.     Ms Smolski did not make any formal submissions but relied on the evidence before the Tribunal. 

   24. Ms Bramley for the Department addressed the Secretary’s power under s 63(2) of the Social Security (Administration) Act 1999 (the Administration Act) to reassess an individual’s qualification for the DSP in light of the current Impairment Tables. She referred to the decision of the AAT in Re Fanning and Secretary, Department of Social Services [2014] AATA 447 which acknowledged the limitation of the Tribunal’s powers to consider an applicant’s entitlement to DSP as at the date of claim and within the 13 weeks period thereafter and that any subsequent change in health was irrelevant to the questions arising, and also that:

   The legislation requires the Tribunal to consider the treatment that has taken place and was intended to take place, and the likely effect of that treatment at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant.

   25. Ms Bramley submitted that while the Secretary accepted that the CFS was fully diagnosed, treated and stabilised and while there may be scope for reduction of the impact of the condition as found by the AAT Tier 1, the appropriate impairment rating was 10 points under Table 1. As all the other conditions either fell within Table 1 or on the evidence provided were well controlled with little or no impact on the ability to function, Ms Smolski’s impairment rating in the relevant period was 10 points. As such it was contended that she did not meet s 94(1)(b) of the Act and it was thus not necessary to consider whether she had a continuing inability to work.

   26.     Ms Bramley also referred to the Federal Court decision in Freeman and Secretary, Department of Social Services (1988) 19 FCR 342 which considered the jurisdiction of the Administrative Appeals Tribunal in relation to the review of the decision to cancel a pension or benefit. This stated that (at 345):

   However if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.  Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim. 

   TRIBUNAL’S DELIBERATIONS

   27.     The Tribunal accepts the diagnosis made in 2009/2010 of CFS and joint hypermobility syndrome.  I suggest that the latter may be the genetically determined condition known as Ehlers-Danlos syndrome as according to Ms Smolski, both her brother and her mother suffer from joint hypermobility. 

   28.     As there is no specialist opinion regarding the fibromyalgia diagnosis and Ms Smolski attributes her muscle aches to her joint hypermobility, the diagnosis of fibromyalgia requires confirmation.  Whether or not such a diagnosis is confirmed is however not relevant to the impairment rating calculated in accordance with Table 1 and as there is no medical evidence before the Tribunal of an additional effect to that already rated as due to the CFS the impairment rating of 10 points is accepted as correct.

   29.     Ms Smolski may be depressed.  Certainly her affect at the hearing was considerably diminished.  She has not been assessed by a clinical psychologist or psychiatrist since 2007.  She has not seen a specialist in CFS since 2010.  All treatment regimes put in place at that date have since been abandoned by her as being ineffective.  She has accepted her general practitioner and family’s advice that there is no treatment for CFS. 

   30.     Ms Smolski requires medical specialist reassessment, not only with respect to her eligibility for a DSP, but in order for her to access further treatment which hopefully would improve her state of health.

   31. Based on her evidence and the criteria of the Impairment Tables the assignment of a rating of 10 points under Table 1 is the correct assessment. As a result, she did not meet the criteria of s 94(1)(b) and the decision to cancel her DSP was correct.

I certify that the preceding 31 (thirty‑one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 24 August 2017

Date of hearing:	2 June 2017
Applicant:	In person
Advocate for the Applicant:	Mr John Rothwell
Solicitor for the Respondent:	Ms Ailsa Bramley - Department of Human Services