Soe and Secretary, Department of Family and Community Services
[2002] AATA 926
•15 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 926
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1778
GENERAL ADMINISTRATIVE DIVISION )
Re MYINT SOE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr S Webb, Member
Date15 October 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that the Applicant qualifies for and is entitled to a disability support pension from 27 January 2001.
[SGD] Mr S Webb
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment – chronic hepatitis C – assessment – continuing inability to work
Social Security Act 1991, section 94, Schedule 1B
Social Security (Administration) Act 1999, Schedule 2
REASONS FOR DECISION
15 October 2002 Mr S Webb, Member
This is an application by Mr Myint Soe ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT"), dated 30 October 2001, which affirmed a decision of a Centrelink authorised review officer ("ARO") dated 17 August 2001. The ARO's decision affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 8 May 2001 to reject the Applicant's claim for disability support pension ("DSP").
The Tribunal convened a hearing in this matter in Sydney on 12 September 2002. The Applicant represented himself and Ms S Mantaring of Centrelink's Advocacy and Administrative Law Team represented the Respondent. The Tribunal was assisted by an interpreter in the Burmese language.
The following documents were placed in evidence before the Tribunal:
Exhibit T1 – T30 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit A1 Applicant's Statement of Issues dated 4 April 2002.
Exhibit R1 Respondent's Statement of Facts and Contentions dated 16 August 2002 with Attachments A, B, C, D and E.
ISSUES
The issues in this matter are whether the Applicant, at the relevant time, met the requirements of section 94 of the Social Security Act 1991 ("the Act") and qualified for DSP.
LEGISLATION
The relevant legislation in this matter is sections 94(1), (2), (3), (5) and (6) of the Act:
"Qualification for disability support pension
94.(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)the person has turned 16; and
(e)the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
…
94.(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94.(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
…
94.(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
Person not qualified in certain circumstances
94.(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment."
Clauses 3 and 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999 ("the SSA Act") also apply:
"Start day—general rule
3 If:
(a)a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
Start day—early claim
4.(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.
4.(2) For the purposes of subclause (1), the following provisions have effect:
(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
…"
PRELIMINARY ISSUES
A preliminary issue arose at the hearing concerning a claim for DSP that the Applicant lodged on 6 July 2001. The Applicant contended that this claim, with his original claim lodged on 15 December 2000, had been reviewed by the SSAT and were, therefore, before the Tribunal in the current proceedings.
The Respondent submitted that this is not the case. The claim lodged on 6 July 2001 had been rejected and the Applicant had not sought review of that decision. The rejection had not, therefore, been considered by the SSAT.
The Tribunal finds that the Applicant's DSP claim lodged on 6 July 2001 is not subject of appeal and, pursuant to section 1283 of the Act is not, therefore, before the Tribunal in this matter.
BACKGROUND
The Applicant was born on 30 December 1960 in Myitkyina, Burma. He completed a Bachelor of Science degree in Mathematics at Mandalay University in 1982. He taught mathematics on a voluntary basis in Thailand after fleeing from Myanmar (formerly Burma) in 1993. He arrived in Australia on 22 November 1996 and was granted permanent residency status (T6).
The Applicant was diagnosed with Chronic Hepatitis C in September 1999. He commenced antiviral treatment for this condition at Concord Hospital in January 2000 (T21 folio 219). He completed and submitted a claim for DSP on 15 December 2000 (T7). Medical examinations were conducted on 1 December 2000 (T8), 15 January 2001 (T9), 29 January 2001 (T10), 3 May 2001 (T11), 7 May 2001 (T12) and 8 May 2001 (T13), on which day the Applicant's claim was rejected (T14). A review confirmed the decision on 31 July 2001 (T23), as did an ARO, on review, on 17 August 2001 (T26) and the SSAT, on appeal, on 30 October 2001 (T2).
EVIDENCE
The Applicant
The Applicant told the Tribunal that he became unwell in 1998 while studying in Melbourne, stopping his IT course only one month after commencing. He experienced symptoms of tiredness and coldness, and would get sick easily. He also experienced faintness. His symptoms persisted and he was diagnosed with Hepatitis C having had a liver biopsy in Sydney in September 1999. The Applicant did not know how he had contracted this disease.
In 1999, the Applicant moved from Melbourne to Sydney for treatment because the cold weather in Melbourne exacerbated his symptoms. He was not able to resume his studies or engage in work of any kind. He was referred by his general practitioner, Dr Cheng, to the Liver Clinic at Concord Hospital for treatment, where he was treated by Professor Ngu and Dr Lee. Professor Ngu asked him if he would participate in a new treatment involving administration of Interferon by injection and Ribavirin orally. Professor Ngu had advised him that there may be strong side effects and there was no assurance of a cure – some people were cured, others were not: there was a 50:50 chance. The Applicant agreed because he wanted to be cured.
The treatment program commenced in January 2000 for an initial period of six months. He was able to self-administer the Interferon once every three days by subcutaneous injection and took three Ribavirin tablets in the morning and two in the evening. The side effects of the treatment included periods of fever after each injection and gastric problems. The first period of treatment did not cure the disease, although the treating doctors told him that they thought the disease was responding to the treatment. The Applicant felt it was getting worse. He was told that the treatment may effect a cure over a further six month period, although Dr Cheng was not certain about this.
Treatment continued for a second six month period. During this period of treatment his symptoms became worse, his beard turned white and "it was a period of Hell". The Applicant told the Tribunal that during this period he was dependent upon a newstart allowance and it was necessary for him to obtain certificates from his doctors as he was being urged by Centrelink to seek employment and attend interviews. He found this pressure very stressful and became increasingly depressed by the hopelessness of his situation. He had no means of support other than Centrelink and could not work because of his condition, which was on-going and not responding to the treatment. His situation was made worse by the treatment, which had awful side effects and rendered him unable to look for work or even resume his studies. This is why he lodged a claim for DSP in December 2000.
The Applicant told the Tribunal he lives by himself and was housebound. He spent most days in bed and forced himself to go out only when necessary, to attend a Centrelink interview, visit his doctors or buy some groceries. He was not able to maintain a social life and relied on friends to visit him and do his laundry. Often he would not eat, only sometimes cooking some noodles.
His treatment ceased for a period in early 2001. His doctors told him that there was still a chance that further treatment could be effective. The treatment recommenced for a third period of six months on 11 April 2001. During this period he was able to reduce the dosage of medication, injecting Interferon once per week on a Friday. This did not improve his condition and a fourth period of treatment ensued. However, he was unable to cope with the side effects as well as the symptoms of the disease, and so ceased the treatment two months later.
The Applicant repeated that this treatment was a trial. The doctors did not know if it would be effective or cure him. It had not. He acknowledged that the treating doctors had completed Centrelink reports indicating that his condition was improving or still being treated. This, he thought, reflected their hopes for the treatment. He also acknowledged that his treating doctors had indicated that he may be able to return to work or study within six or twelve months. This, he thought, reflected the doctor's uncertainty about whether the treatment would be effective and what may happen in the future. He told the Tribunal that the proof was that his condition was not cured or improved. The treatment had not worked.
The Applicant told the Tribunal that since ceasing the treatment he does not have to suffer the extreme aches all over his body, especially in his neck, or the fever he experienced after each Interferon injection. He still has low blood pressure and feels lethargic and depressed. He is currently receiving a DSP. Centrelink suggested that he should lodge a claim for DSP, as it was more appropriate for him to be on DSP than newstart allowance. He did so and the claim was approved. DSP was granted from 30 May 2002. Thus, the Tribunal has only to determine if the Applicant was qualified for DSP for the period before 30 May 2002.
The Medical Evidence
There is no dispute in the medical evidence regarding the diagnosis of Chronic Hepatitis C. However, there is conflicting evidence regarding the status of the disease and its prognosis during the operative period, especially in relation to the Applicant's ability to resume study or work. The medical evidence is relevantly summarised as follows:
13 January 2000 (T3) Dr Cheng diagnosed Chronic Hepatitis C, with clinical features including fatigue, lethargy and recurrent nausea. Dr Cheng recorded the condition as long term, stable and constant. He indicated that return to work or study in "6-12 months", but noted "Pt cannot involve in any work training program during the course of anti-viral R".
1 May 2000 (T6) Dr Lee recorded that the Applicant's Hepatitis C was likely to last "Medium (6 months-2 years)" with symptoms including "treatment related side effects, fatigue, fevers, muscle aches and pains, tiredness".
13 June 2000 (T4) Dr Cheng reported "Hepatitis C receiving treatment" and "As a result of the side-effects of the treatment, patient has been fatigue with muscle aches, lethargic and feverish, also getting irritable and short-temper." He recorded the condition being long term, stable and constant and indicated a return to work or study "within 6 months".
14 July 2000 (T5) Dr Yu reported "He is currently seeing a liver specialist and is undergoing interferon treatment. He has further seven months treatment left. On examination he had generalised wasting of muscle. There was no other evidence of chronic liver disease. On the evidence presented today, I feel he is temporarily unfit for work due to his condition but should be reviewed in 6 to 12 months time." Dr Yu recorded the condition as permanent and gave an impairment rating of 10, applying Impairment Table 11.1, indicating a return to work or study in "6-12 months".
4 December 2000 (T8) Dr Cheng recorded the disease as long term and stable with clinical features of "lethargy and fatigue, also side effects from treatment including fever and head and muscle aches". Treatment was recorded as "INTRON A 18 miu s/c 3 weekly. RIBOVIRIN 200mg…". Dr Cheng indicated return to work or study for more than 20 hours per week in "6-12 months" and return to study and full time work "within 6 months", issuing a medical certificate as "this person is temporarily unfit for work/study from 10/12/2000 to 10/12/2001".
15 January 2001 (T9) Dr Chew recorded the Hepatitis C "still being treated with interferon and ribavirin – lethargic s/e – not able to cope with housework occasionally. Wgt 44kg usually 49-51kg". Dr Chew recorded the condition being permanent and temporary. He did not assess impairment and indicated return to work or study in "? 6-12 months". Dr Chew reported "…his Hepatitis is responding to treatment…He is currently unfit for work both part and full time over the next 6 months because of the side effects associated with the treatment. A review is suggested then."
29 January 2001 (T10) Dr Lee reported clinical features "tiredness, abdominal pain" and that Interferon and Ribavirin treatment had ceased on 27 January 2001. She recorded the disease as long term and improving, indicating return to part time work or study "within 6 months".
3 May 2001 (T11) Dr Logan issued a medical certificate indicating that "the patient is likely to be able to work for at least 8 hours a week or return to work/study in 6-12 months". He reported that there may be long term limitations on the patient's ability to work "depending on the success of the treatment" and declared the Applicant unfit for work from 5 May 2001 to 5 August 2001.
7 May 2001 (T12) Dr Logan recorded that the disease was constant and being treated, noting "unable to work due to his treatment for Hepatitis C". He indicated return to work more than 20 hours per week in "12-24 months" and noted "reconsider the situation after 6 months".
9 May 2001 (T15) Dr Lee issued a medical certificate in the opinion that "the person is temporarily unfit for work/study from 9/5/01 to 9/5/02".
10 July 2001 (T17) Dr Nguyen reported "currently still undergoing a combined treatment (Ribaavirin and Interferon), which was restarted in April 2001" and recorded the disease as permanent and temporary. Dr Nguyen did not allocate an impairment rating and indicated return to work or study in "6-12 months".
5 July 2001 (T19) Dr Clayton reported clinical features "Anaemia Malaise Weakness" and treatment with Interferon and Ribavirin. He did not record opinion regarding the status of the condition but indicated return to work in "more than 2 years" and return to study for at least 15 hours per week in "12-24 months".
The Tribunal notes the Concord Hospital Liver Clinic Hepatitis C treatment flow sheet (T21 folio 219) records cessation of treatment in January 2001 and resumption of treatment on 11 April 2001.
The Tribunal notes the "Protocol for the treatment of Chronic Hepatitis C (CHC) Patients with Interferon Alfa-2b (INTRON A) and ribavirin (REBETOL)" ("the Treatment Protocol") (T6 folios 68-72) dated 22 April 1998. The Treatment Protocol provides the following relevant information:
"In recent studies in patients with chronic non-A, non-B hepatitis or hepatitis C, administration of INTRON A resulted in the improvement of the liver enzyme level (the laboratory test most frequently abnormal in your disease) in approximately 50% of the patients while they were on the treatment. When treatment was discontinued, approximately 50% of the responding patients lost their response.
RIBAVIRIN is a drug that has activity against some viruses. When administered alone it does not have activity against hepatitis C. It has been shown that oral ribavirin alone (600 to 1200mg daily) administered for 12 to 36 weeks leads to the improvement of the liver enzyme in most patients. However, no patient maintained normal liver enzyme levels after ribavirin was stopped and it did not eliminate the hepatitis C or improve the liver disease. Studies of ribavirin in combination with interferon alfa suggest added benefits for combination therapy over interferon alfa administered alone. The most important potential benefit being the sustained loss of the hepatitis C virus. In the data available to date, compared to treatment with interferon therapy alone, there was approximately a ten fold increase in patients who cleared virus when the combination therapy was used to retreat patients who had relapsed after their previous course of interferon therapy.
…
The duration of your participation in the treatment protocol can be up to 76 weeks from the time of enrolment (52 weeks of treatment plus 24 weeks of follow-up. (T6 folio 68)
…
Spontaneous recovery from chronic hepatitis C is rare." (T6 folio 71)
The Tribunal notes the "Consent by patient for participation in Schering-Plough expanded access/compassionate use programme" (T21 folios 216-218) dated 25 January 2001, which relevantly states (T21 folios 216-217):
"Study Title: Treatment of Patients with Chronic Hepatitis C, who have have partially responded to, or have not responded to, or have relapsed after standard therapy with interferon alfa-2b and ribavirin – Combination Treatment with pegylated interferon alfa-2b and ribavirin.
Principal Investigator: Professor Meng Ngu
…
Your treating physician has recommended that you participate in an expanded access/compassionate use program for the treatment of chronic hepatitis C. You are either:1. A naive patient who has failed to respond to 24 weeks of standard therapy with interferon alfa-2b plus compassionate use of ribavirin.
2. A relapsed patient who has failed to respond to 12 weeks of Rebetron therapy.
3. A relapsed patient who has responded to Rebetron and who may benefit from an additional 24 weeks of pegylated interferon alfa-2b and ribavirin.
…
The purpose of this program is to provide treatment guidelines for the combination of pegylated interferon alfa-2b administered SC once per week for up to 12 months in combination with ribavirin given concurrently daily in two divided doses for the treatment of your disease.
…If you complete a full course of therapy, the visits will include Entry, Weeks 24, 48 and Follow up Week 24 (Week 72). …If at Week 24, your PCR is still positive, you will be discontinued from study as a treatment failure.
…
The total number of patients expected to take part in this program is around 300 at major hepatitis centres in Australia. You may be on medication for up to 12 months, after this time there will be no further access to pegylated interferon. The length of time of your participation may be up to 18 months, if you continue to meet all the inclusion criteria.
…
At the present time, there are no approved alternate therapies available for your condition. Approximately 5-10% of patients with chronic hepatitis C per year recover spontaneously from theirdisease without treatment."
SUBMISSIONS
The Applicant
The Applicant submitted that his illness may have been considered to be temporary at some time in the early stages, but not now. The passage of time had proved that the disease is not temporary. Doctors may use the word "temporary"' but are not able to state that the disease will definitely be cured. In a letter addressed to the SSAT (T30 folio 242), dated 9 October 2001, the Applicant submitted:
"I have been undergoing medical treatment for over two years now. And no doctor can tell, with any certainty, how much longer I will have to undergo further medical treatment."
The Applicant argued that his claim had been assessed on the information provided by doctors, some of whom had not even examined him or spoken with his treating doctors at the Concord Hospital. He further argued that the medical assessment of his condition requires expertise in the treatment of Hepatitis C (T30 folio 243).
The Applicant felt that the additional medical information he provided to the ARO, including a treating doctor's report from Dr Clayton, had not been properly taken into account.
The Applicant submitted that during the operative period he had already received treatment for his illness for a period of more than twelve months. He had agreed to participate in a second treatment program because he wanted to be cured, but this meant his treatment was prolonged with an uncertain prognosis and as a consequence his condition had been characterised as "temporary". This was unfair and made him afraid to participate in any future treatment trials because he may lose DSP, on which he depends for income because he is unable to work.
The Applicant submitted that the doctors assessing his condition in relation to his claim for DSP had not taken into account the treatment he had received over the preceding 12 month period, and only responded to the treatment he was receiving during the operative period. This treatment was a trial treatment program, as was the first period of treatment. Neither of which provide any certainty of a cure. In the circumstances it is unfair to decide that hepatitis C is a temporary condition, just because the person with the illness is participating in a trial treatment program, the side effects of which are severe.
The Applicant noted that some of the doctors, for example Dr Lee, who had tried to encourage him, had indicated that his condition was improving because of the treatment. This was not the case. He felt that the symptoms of his disease had been made worse by the treatment.
The Respondent
Ms Mantaring, for the Respondent, submitted that the Applicant's condition during the operative period was not sufficiently treated and stabilised to be diagnosed as a permanent condition. Paragraphs 4, 5, and 6 of the Introduction to the Impairment Tables at Schedule 1B of the Act state:
"4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years."
For a condition to be deemed as permanent it must be fully diagnosed, treated and stabilised, with all reasonable treatment having been tried. It was submitted for the Respondent that unless the effect of the treatment is known, a condition cannot be considered permanent and assigned an impairment rating. The medical evidence from the operative period shows that the Applicant was still undergoing further treatment for his condition.
Ms Mantaring argued that the Applicant's condition was responding to treatment prior to and during the operative period, as confirmed by the contemporaneous medical reports. A condition that is responding to treatment cannot be considered fully treated or stabilised.
Ms Mantaring submitted that the Applicant's condition could not be assigned an impairment rating during the operative period. Accordingly, the Applicant failed to satisfy the requirements of section 94(1)(b) of the Act.
Finally, Ms Mantaring submitted that because the Applicant fails to meet the requirements of s 94(1)(b) of the Act, it is not necessary to further consider the tests set out in s 94(1)(c) of the Act. However, in relation to section 94(1)(c) of the Act Ms Mantaring noted that:
"the medical evidence shows that the Applicant was temporarily unfit for all types of work during the relevant period and that his correct entitlement was newstart allowance with exemption from the activity test because of his incapacity."
CONSIDERATION OF THE ISSUES AND FINDINGS
The Tribunal finds that the Applicant lodged a claim for DSP on 15 December 2000 and the operative period, therefore, commences on that day and concludes, pursuant to subclause 4(1) at Part 2 of Schedule 2 of the SSA Act, thirteen weeks thereafter.
It is common ground that the Applicant suffers from Chronic Hepatitis C. The Applicant claimed he first experienced the symptoms of his condition in 1998 and ceased his studies as a consequence. The medical evidence reveals that this condition was diagnosed following a liver biopsy in September 1999.
The Tribunal finds that the Applicant has a physical impairment pursuant to section 94(1)(a) of the Act.
The Tribunal finds that the Applicant commenced treatment for Chronic Hepatitis C and associated symptoms at the Concord Hospital Liver Clinic in January 2000 in accordance with the Treatment Protocol. The Tribunal finds that the Treatment Protocol involved the administration of Interferon alfa-2b by subcutaneous injection three times per week and the oral administration of Ribavirin twice daily for a period of 52 weeks, with a follow-up period of a further 24 weeks. The Tribunal finds that the Applicant completed the treatment period on 27 January 2001.
The Applicant subsequently agreed to participate in a second trial treatment program under the management of Professor Ngu, who had been the supervising specialist overseeing the Applicant's treatment at the Concord Hospital Liver Clinic. The instrument of consent, unsigned and dated 25 January 2001 (T21 folios 216-218), sets out the treatment program and criteria applying to the "Schering-Plough Expanded Access/Compassionate Use Programme". The Tribunal finds this program was an experimental study, the object of which was the production of treatment guidelines for the combination of pegylated Interferon alfa-2b and Ribavirin in certain doses over a specified period.
The instrument of consent characterises patients referred into the trial as either:
"1. A naive patient who has failed to respond to 24 weeks of standard therapy with interferon alfa-2b plus compassionate use of ribavirin.
2. A relapsed patient who has failed to respond to 12 weeks of Rebetron therapy.
3. A relapsed patient who has responded to Rebetron and who may benefit from an additional 24 weeks of pegylated interferon alfa-2b and ribavirin."
The Tribunal finds that the Applicant had been treated in accordance with the Treatment Protocol and therefore, for the purpose of the experimental study, is considered to be a "naïve patient who has failed to respond to 24 weeks of standard therapy with interferon alfa-2b with compassionate use of ribavirin".The Respondent submitted that the Applicant's condition was not either fully treated or stabilised during the operative period and was responding positively to treatment. In order to determine whether or not the Applicant's condition can be considered to be either fully treated or stabilised at that time, the Tribunal turns to the Introduction to the Impairment Tables set out at Schedule 1B of the Act, which have been referred to in submissions for the Respondent. The approach to be adopted is set out in paragraph 6 of the Introduction to the Impairment Tables, as follows:
"6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment."
The Tribunal has found that the Applicant underwent 52 weeks of treatment in accordance with the Treatment Protocol and that this treatment concluded on 27 January 2001. The Tribunal is mindful of the lack of certainty attaching to treatments for those persons diagnosed to be suffering from Chronic Hepatitis C. There is evidence that only a proportion of such persons respond positively to the available treatments (T6 folio 68 and T21 folio 216). The Tribunal has found that the Applicant is within that group of persons described by Professor Ngu as "a naive patient who has failed to respond". On this basis, the Tribunal finds that the Applicant has undergone treatment of a character and duration accepted by experts in the treatment of Chronic Hepatitis C as sufficient to effect a positive response in his condition and, in the absence of a suitable positive response, ceased that treatment.
In making this finding the Tribunal notes that there is little evidence to support the proposition that the Applicant's condition was improving or responding positively to the treatment. Dr Chew conducted an assessment for Health Service Australia and reported on 15 January 2001 that the Applicant "has yet to complete his year long course of treatment with Interferon and Ribavirin though his Hepatitis is responding to the treatment" (T9 folio 132). Dr Lee, the Applicant's treating doctor at the Concord Hospital Liver Clinic, selected "Improving" from multiple-choice descriptors of the condition in a Treating Doctor's Report dated 29 January 2001. The Tribunal does not find this evidence persuasive and prefers the records of the Concord Hospital Liver Clinic, which reveal that the Applicant was treated with Interferon and Ribavirin from January 2000 to January 2001 and "relapse 1/12 after tr stopped" (T21 folio 219). The Tribunal finds that whatever improvement in the Applicant's condition may have derived from the initial twelve month treatment program, this was not sustained following cessation of the treatment. This was the reason the Applicant was referred into Professor Ngu's experimental study, which commenced on 11 April 2001.
This being the case, the Tribunal turns to the question whether further treatment was planned and if so whether a substantial improvement could reliably be expected and whether the proposed treatment was of a type regularly undertaken or performed, with a high success rate and low risk to the patient. The treatment planned for the Applicant, at the time, was his participation in a further trial treatment program involving the combination of pegylated Interferon alfa-2b (a modified form of Intron A) and Ribavirin over a period of up to 72 weeks. Having found that this treatment program was an experimental study, the Tribunal finds that a substantial improvement could not reliably be expected and that the planned treatment was not of a type regularly undertaken or performed with a high success rate and a low risk to the patient.
In the absence of evidence to the contrary, the Tribunal finds that on 27 January 2001 significant functional improvement could not be expected to result from the Applicant's planned participation in an experimental study and, therefore, finds it reasonable to consider his condition stabilised at that date. In making this finding, the Tribunal notes the medical evidence of Dr Cheng (T3, T4 and T8), describing the condition as long term (more than two years), constant and stable in the period to 4 December 2000, and Dr Yu (T5), describing the condition as permanent and assigning an impairment rating of 10 points in July 2000.
Taking all these matters into account, the Tribunal finds that the Applicant's condition was not improving or responding positively to treatment during the operative period and, on the basis of the available evidence, it is more likely than not that the condition would persist for more than two years without significant functional improvement.
This being the case, the Tribunal finds that it is reasonable to consider the Applicant's Chronic Hepatitis C condition to be permanent at the cessation of treatment on 27 January 2001.
The Tribunal notes the Applicant's condition was considered to be temporary by examining doctors during the operative period, as treatment was continuing, and impairment ratings were not assigned. Prior to the operative period, on 14 July 2000, Dr Yu assigned an impairment rating of 10 points under Table 11.1 of the Impairment Tables (T5 folio 34), however, at this date the Applicant's condition was not stabilised and the 12 month treatment program had not been completed. The Tribunal has found that the Applicant's condition was permanent on completion of the 12 month treatment program on 27 January 2001 and notes that Dr Cheng (T8 folio 116) and Dr Chew (T9 folio 122) certified that the Applicant was unfit for work during the operative period. Turning to the Tables for the Assessment of Work-related Impairment for disability support pension at Schedule 1B of the Act ("the Impairment Tables"), liver conditions are to be assessed under Table 11.1, which relevantly provides:
"TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT
Rating Criteria
NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.
TEN Nausea and vomiting: moderate symptoms despite optimal treatment Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment Past gastric surgery with moderate dyspepsia and dumping syndrome Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTY Constant dysphagia requiring regular dilatation Vomiting: severe, not controlled despite optimal medication, and causing significant weight loss Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.
THIRTY Diet limited to liquid or to pureed food or long term total parenteral nutrition Gastrostomy Established chronic liver disease. Symptoms (eg, ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks."
The Tribunal finds that the medical evidence supports the Applicant's evidence regarding his persistent symptoms of fatigue, lethargy, muscle and head-aches and abdominal pain during the operative period. The Tribunal finds that these symptoms caused the Applicant difficulty coping with and completing most daily activities, many of which, such as housework and laundry, exacerbate the symptoms. There is no evidence of more severe symptoms such as ascites, bleeding disorders or hepatic encephalopathy. Taking these factors into account, the Tribunal finds an impairment rating of twenty points to be appropriate pursuant to Table 11.1 of the Impairment Tables. This being the case, the Tribunal finds that the Applicant satisfies the requirements of section 94(1)(b) of the Act.
The Applicant submitted that he is unable to work because of his illness and the weight of the medical evidence supports this proposition during the operative period. However, it is necessary to assess the Applicant's continuing inability to work during the operative period pursuant to section 94(2) of the Act, and in so doing to have regard to sections 94(3) and (5) which relevantly apply.
The Respondent submitted that the medical evidence shows that the Applicant was deemed temporarily unfit for all types of work during the operative period and, therefore, his correct entitlement was newstart allowance. The Tribunal does not agree with this submission.
The temporary character of the Applicant's unfitness for work, and the likely period within which he may have been able to return to work, as recorded in the medical evidence, appears to reflect the expected duration of the treatment the Applicant was undergoing for his condition and the possibility that such treatment may have a positive effect upon his condition. The Tribunal has found that the treatment of the Applicant's condition under the Treatment Protocol ceased on 27 January 2001 and, thereupon, the Applicant's condition is considered permanent. The Tribunal has also found that it was more likely than not that the Applicant's condition would persist for more than two years without significant functional improvement. Taking these factors into account, the Tribunal is persuaded by the evidence of Dr Logan on 3 May 2001, that there may be long term limitations on the patient's ability to work depending on the success of the treatment (T11 folio 137), which was experimental in nature. This opinion is reflected in the evidence of Dr Clayton who considered on 5 July 2001 that the Applicant would not be able to return to work within two years (T19).
The Tribunal finds that the Applicant's impairment is of itself sufficient to prevent him from doing any work or training for two years commencing on 27 January 2001. The Applicant stated and the Tribunal accepted that he is effectively housebound and that his illness prevents him from undertaking daily activities without difficulty. The weight of the medical evidence is that the condition is a long term condition, lasting two years or more, with debilitating symptoms that may be aggravated, temporarily, by the side effects of the Interferon and Ribavirin treatments.
This being the case, the Tribunal finds that the Applicant has a continuing inability to work pursuant to section 94(2) of the Act and, therefore, satisfies the requirements of section 94(1)(c) of the Act.
The Tribunal finds that the Applicant qualifies for DSP pursuant to section 94 of the Act from 27 January 2001.
DECISION
The Tribunal sets aside the decision under review and in substitution therefor decides that the Applicant qualifies for and is entitled to a disability support pension from 27 January 2001.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: H Sim .....................................................................................
AssociateDates of Hearing 12 September 2002
Date of Decision 15 October 2002
Representative for the Applicant Self represented
Advocate for the Respondent S Mantaring
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