Spicer and Secretary, Department of Social Services (Social services second review)
[2024] AATA 771
•18 April 2024
Spicer and Secretary, Department of Social Services (Social services second review) [2024] AATA 771 (18 April 2024)
Division:GENERAL DIVISION
File Number:2023/6781
Re:Brock Spicer
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:18 April 2024
Place:Brisbane
The decision under review is affirmed.
...............................[SGD]..................................
Member D MitchellCatchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558; (2013) 138 ALD 180
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123Walker and Secretary, Department of Social Services [2021] AATA 1767
Secondary Sources
Mayo Clinic, ‘Costochondritis’, Diseases & Conditions (Web Page) < FOR DECISION
Member D Mitchell
18 April 2024
INTRODUCTION
On 11 January 2023, Mr Brock Spicer (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] The Applicant’s claim for the DSP listed his disabilities or medical conditions that significantly affect his ability to work to include occupational asthma, musculoskeletal left chest wall pain and anxiety/depression.[2]
[1] Exhibit 1, T Documents, T33, pages 114-144, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T33, page 139, Claim for Disability Support Pension.
On 24 January 2023,[3] the Applicant’s claim was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T36, pages 114-144, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision.[4] On 20 June 2023, an Authorised Review Officer affirmed the decision.[5]
[4] Exhibit 1, T Documents, T37, pages 151-152, Centrelink file notes.
[5] Exhibit 1, T Documents, T47, pages 172-179, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[6]
[6] Exhibit 1, T Documents, T49, pages 191-192, Request for Statement from the SSCSD.
On 22 November 2022, the SSCSD affirmed the decision to refuse the Applicant’s claim for the DSP.[7]
[7] Exhibit 1, T Documents, T2, pages 5-14, Decision of the SSCSD.
On 13 September 2023, the Applicant made an application for a second-tier review of this matter by the General Division of this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 8 March 2024, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for the DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).[9] Following is a summary of the key requirements which relate to the Applicant’s application.[9] The 2011 Determination was in force at the times relevant to this Application. It has since been repealed and replaced by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth). For the purpose of this Application, noting the time frame involved, it was not necessary to consider the 2023 Determination.
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of the DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[10]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[11] and
3.does the Applicant have a continuing inability to work?[12]
[10] Section 94(1)(a) of the Act.
[11] Section 94(1)(b) of the Act.
[12] Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[13]
[13] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[14] As such, a condition could be considered “permanent” from the perspective of it being life-long but would not meet the definition of “permanent” under the DSP requirements.
[14] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[15]
[15] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[16]
(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.
[16] Section 6(6) of the Determination.
Reasonable treatment is 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.[17]
[17] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[18] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19]
[18] Section 6(2) of the Determination.
[19] Section 8(1) of the Determination.
Relevantly, pursuant to section 11 of the Determination, in assigning an impairment rating under the Impairment Tables:[20]
Descriptors involving performing activities
(3)When determining whether a descriptor applied that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whether they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact on those impairments, taking into account the severity, duration and frequency of the episode or fluctuations as appropriate.
No impairment resulting from a condition
(5) To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
[20] Sections 11(3)-(5) of the Determination.
There is no Impairment Table dealing specifically with pain. When assessing pain, the Tribunal must consider:[21]
(a) that acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) that chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised.
[21] Section 6(9) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2) of the Act, which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[22]
[22] Section 94(3B) of the Act.
The Administration Act sets out that qualification for the DSP and therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for the DSP is the date the person becomes qualified.[23]
[23] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
The Federal Court and the Tribunal have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for the DSP and the 13 weeks which followed it (the Relevant Period). Medical and other evidence that is provided outside of the Relevant Period may be considered however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[24]
[24] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 11 January 2023, the date the Applicant lodged his claim for DSP. It ended 13 weeks later on 12 April 2023. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[25] The Respondent considers the Applicant’s impairments, for the purposes of the claim for the DSP in question, consist of occupational asthma,[26] left chest wall pain[27] and mental health conditions.[28]
[25] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 39.
[26] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-11, paragraphs 43-51.
[27] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-13, paragraphs 52-55.
[28] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 13-15, paragraphs 56-58.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
2.did the Applicant have a continuing inability to work?
APPLICANT’S EVIDENCE
Ahead of the Hearing, the Applicant provided evidence including:
·General Practitioner Notes.[29]
·Primary Health Network Mental Health intake referrals.[30]
·Letter from Mr Jack Ellison, psychologist.[31]
·Information regarding his engagement with Maxx Solutions and Maxx Employment.[32]
[29] Exhibit 3, General practitioner notes.
[30] Exhibit 3, PHN Mental Health intake referrals.
[31] Exhibit 4, Letter from Mr Jack Ellison.
[32] Exhibit 5, Program of Support documents.
At the Hearing, the Applicant told the Tribunal that:
·His asthma has made it hard to find a suitable job.
·He experiences shortness of breath.
·He experiences constant chest pain. He has learnt to live with it.
·He gets tired quickly whereas in the past he could work 12 hours at a time.
·He has two inhalers: Ventolin as needed and Seretide taken 2 puffs in the morning.
·His asthma is triggered by air conditioning as well as different kinds of fumes and exposure to dusts. For example he avoids having the air conditioning on in the car so has the window down. When a truck that emits lots of fumes comes beside him, he feels his chest and throat tighten and needs to take his Ventolin. His breathing and heart rate pick up like a panic attack.
·If he does not take his Ventolin when his asthma is triggered, he vomits and gets a migraine. He will try to manage his asthma by removing himself from the trigger, where possible.
·His asthma is triggered regularly, it is worse when he leaves the house.
·He could go for a walk however the more active he is the more his chest hurts.
·His chest pain leads to breathing problems.
·Everything started in 2014, his chest pain started with an infection.
·His chest pain feels like his chest is closing in, it is always there and is worse when his asthma is triggered.
·He can play with his children however as a consequence his pain is far worse.
·He does not let his children see his pain – he refuses to let it affect how he raises his children.
·His nose blocks or runs when he helps with chores around the house like vacuuming and making the bed.
·He can drive himself to the shops or take his children to school.
·He takes Panadol to help with his pain.
·He can use public transport.
·He can walk unassisted.
·His children are presently 6 and 7 years old. He helps them with their homework and plays with them doing indoor things like building Lego.
·He hides his pain when his children are around as it is not their responsibility.
·He has been diagnosed with costochondritis.
·Since 2014 he has tried medication and physio however there has been no change or improvement of his asthma or chest pain.
·The doctors have said he will not get better.
·One time, the physiotherapist pressed on his ribs and he ended up vomiting and getting a temperature.
·He would like to not have pain, asthma or mental health issues and would get back to work if he could.
·If he tries to do things overhead or tries to twist his trunk his chest pain is worse.
·He has not seen a pain specialist or a pain clinic. While he was told that his doctor had referred him to the Sunshine Coast Hospital pain clinic, he has never been contacted by the hospital or anyone in relation to such a referral. He does not believe he is on the waiting list.
·The specialist talked about engaging in pain clinic, but he did not meet the requirements.
·Since 2019 to now he has seen several different specialists, but it has been a while since everything started, he should have sought help earlier.
·He saw psychologists Ms Major and Dr Corser however it was outside the Relevant Period and had to have 5 appointments before they would write a letter and could confirm their diagnosis. He had the 5 appointments and then there was an issue around the funding of his treatment, once he got the funding back in place, they would no longer see him.
·He does not think that psychological treatment helped with his conditions.
·He has seen 4 separate psychological practitioners between 2019 and 2022.
·He lost his job, had a WorkCover claim and could not apply for Centrelink.
·He received WorkCover during periods in 2017 and 2018.
·
He had tried to stay away from claiming the DSP. He only applied because a registered psychologist doing a job capacity report and his adviser from Serina Russo told him he should and that with his 2018 documents and report from
Dr Harding he would be eligible.
·Every time Centrelink or the Tribunal tell him to get more evidence it is never enough, he gets told that his information is outside the 2 year time frame.
·He saw a psychiatrist a week before the hearing.
·He has been on medication for his mental health conditions in the past, but it made him worse.
·Not being able to do the jobs he could in the past affects his mental health. He was a labourer and he used to be able to do certain jobs and push through, now his body and mind say stop and he ends up vomiting and shaking, unable to push through the pain and his physical limitations.
·He last worked full time between 2014 and 2017, however during that period there were three times that he was very sick.
·In 2019 Maxx Employment tried to get him a job, he put his faith in them and told them about his conditions however they sent him to a job cutting timber. The first day was ok, the second day he suffered fatigue and the third day cutting timber with welding being done in close proximately triggered his asthma and made him sick. He had to leave the employment and go back to Maxx Employment. He was then cut off Centrelink for 8 weeks as they deemed, he had voluntarily left a suitable job.
·When he tells prospective employers why he left his last job they either do not call him back or tell him he is too much of a liability to take on.
·His mental health issues started in 2019 because he felt that he had been failing, he wants to get back to work however just keeps failing.
·Some days his self-care is not good, he has lots of ups and downs, some days he cannot get out of bed.
·He only leaves the house when he has to and mainly to take his children to or pick them up from school.
·He does not interact with friends.
·He tries not to let his conditions affects his wife and children.
·He is unable to concentrate on things for a long time.
·In relation to engaging in re-training, his reading, writing and spelling are not his strong points, physical work is what he had always done.
·He wanted to get a Certificate 3 in Aged Care however the theory part of the course was very difficult for him.
·Cleaning is usually involved in any employment and he is triggered by chemical sprays.
·But for his children, he would not be here.
·If there was a cure for asthma he would take it, he is not lazy, he had his first job at 13.
·He would go back to work tomorrow if he was able to.
·He had not fully engaged with Legal Aid because his faith in legal assistance was tarnished throughout the WorkCover process.
On cross-examination, the Applicant said:
·He does not take Panadol every day because it does not work if you do that. He takes it every couple of days and more depending on how active he has been.
·His chest pain is the worst, followed by his asthma and then his depression and anxiety, and they can all hit him at once. They all interact.
·People cannot see his pain and his conditions so to them they are not there.
·He has tried antihistamines and they reduce some symptoms but do not get rid of them; the only things that is effective is to avoid triggers. He needed to take them every day to be effective and did not find them that helpful.
·His symptoms as at the day of the Hearing were the same as during the Relevant Period.
·Travelling to the Hearing made his chest pain more severe and he cannot tell when his asthma will be triggered.
·He could not remember the medications he tried for his mental health, but they did not work, they made it worse.
·The psychiatrist he saw thought he had PTSD and said he should see someone regularly and take medication. He knows in himself that the medication does not work, he feels less of himself and it will not fix his physical issues and each of his conditions trigger the others.
·He has seen a few psychologists. The first time he saw Mr Ellison he had just finished the WorkCover stuff, was in debt, lost his job and was focused on getting back to work. Mr Ellison told him that his conditions were permanent and would limit him physically regardless of what he did. At the time he did not accept that but now he knows it to be true.
The Applicant also submitted a DSP Questionnaire completed by Dr Belinda Hanley, general practitioner, dated 5 December 2023.[33] In the Questionnaire, Dr Hanley provided her opinion in relation to the Applicant’s mental health, however she did not make reference to the Relevant Period. As such while the opinion provided by Dr Hanley provides excellent insight into the Applicant’s mental health conditions it does not assist his claim for the DSP to which this matter relates.
[33] Exhibit 6, DSP Questionnaire.
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
The Tribunal has reviewed the evidence before it in totality and, further, witnessed the Applicant’s discomfort and reaction to air-conditioning during the Hearing. The Tribunal observed throughout the Hearing that the Applicant’s nose started to run, leading to coughing and wheezing. The Applicant gave evidence openly and it was clear to the Tribunal that he was experiencing pain and was vulnerable from a mental health perspective. The Applicant expressed a sense of confusion and hopelessness in relation to the options he had available if he was not eligible for the DSP.
The Tribunal accepts the Applicant’s evidence that his conditions result in persistent pain, affect his ability to undertake daily living activities and impact both his physical and mental health. The Tribunal has no doubt that if given the option, the Applicant would choose to undertake work rather than apply for the DSP. While the Tribunal is empathetic to the Applicant’s situation, it is limited to assessing the Applicant’s eligibility for the DSP in accordance with the statutory requirements.
Occupational Asthma Condition
The evidence before the Tribunal provides that the Applicant was diagnosed with occupational asthma from at least September 2017.[34] Further the evidence outlines that the Applicant has engaged with a number of specialists in relation to this condition,[35] has been prescribed Seretide and Ventolin since January 2018,[36] and that this condition has been considered fully treated and fully stabilised by registered nurses who undertook an Employee Service Assessment and Job Capacity Assessment at the request of the Respondent.[37]
[34] Exhibit 1, T Documents, T8, page 68, Medical Certificate by Dr Phoebe Cramp, general practitioner; T12, pages 72, Report by Dr James McKeon, thoracic and perioperative physician; and T45, page 164, Report by Dr Katherine Lavrencic, respiratory physician.
[35] Exhibit 1, T Documents, T12, pages 72-78, Report by Dr James McKeon, thoracic and perioperative physician; T16, pages 85-86, Report by Dr Philip Harding, occupational physician; and T45, pages 163-165, Report by Dr Katherine Lavrencic, respiratory physician.
[36] Exhibit 1, T Documents, T9, page 69, Medical Certificate.
[37] Exhibit 1, T Documents, T21, pages 91-95, Employment Services Assessment Report and T48, pages 180-190 Job Capacity Assessment Report.
Consequently, it is not in dispute that the Applicant’s occupational asthma condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period.[38] As such the Tribunal considers that the Applicant’s occupational asthma condition is considered permanent for the purposes of being assigned an impairment rating under the Impairment Tables.
[38] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 8-9, paragraphs 40, 43-44.
The Respondent contended that the Applicant’s occupational asthma condition does not warrant a rating under the Impairment Tables. The Respondent relies on the following evidence:[39]
[39] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 9-10, paragraph 45.
(a) Dr Cramp, Dr Bradshaw and Dr Williams all opine that the Applicant’s symptoms are in the specific context of his work environment (T8/68; T9/69; T10/70; T11/71; T13/79; T15/84).
(b) Dr McKeon noted on 8 May 2018 that the Applicant had not required Ventolin ‘for some time’ (T12/74).
(c) Progress notes from Dr Fiona Jackson (General Practitioner) dated 23 August 2019 noted that the Applicant’s asthma was ‘under control’.
(d) The Applicant reported to the Employment Services Assessor on 4 January 2023 that he was able to walk without difficulty, but continued to get shortness of breath, increased coughing and chest pain when bending, twisting or lifting (T32/108). He noted he was able to drive a motor vehicle but avoided air-conditioned environments as it exacerbated his asthma (T32/108).
(e) On 15 February 2023 Dr Kerryn Chatham (General Practitioner) provided a report which indicated the Applicant ‘does not currently have symptoms of asthma’ (T38/153) and I a letter dated the following day that the Applicant’s ‘lung function is normal now, as would be expected in a patient with occupational asthma who has not been recently exposed to triggers’ (T39/154).
(f) Dr Obertik on 1 March 2023 opined that the Applicant’s asthma was symptomatic ‘at times, in particular when exposed to triggers’ (T41/156).
(g) Ms Major and Dr Corser noted in their report that the Applicant reported driving his car could lead to an asthma attack due to the fumes of other cars, or the cold air-conditioning in the supermarket could also trigger these issues (T44/161).
(h)On 10 May 2023 Dr Katherine Lavrenic noted that the Applicant’s condition was well controlled without triggers and that his ‘lung function and symptoms at rest though should not prevent work, and I encourage him to continue to seek an appropriate workplace without triggers’ (T45/164). An antihistamine was suggested to reduce how reactive he was to his environment (T45/165).
The Respondent provided that:[40]
[40] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 10-11, paragraphs 46-51.
46 The Secretary contends that the above evidence makes clear, particularly that of Dr Chatham, that the Applicant’s asthma was well controlled during the qualification period and was not symptomatic. That is supported by the weight of the evidence before the Tribunal which suggests that outside of a work context, and specific triggers, the Applicant would not experience the symptoms of his asthma.
47 To the extent that the Applicant reported to Ms Majors [sic] and Dr Corser that he continues to experience triggers for his occupational asthma in environments in general life, outside of the workplace (such as air conditioning or fumes from a motor vehicle), the Secretary contends that this evidence is unclear to what extent the Applicant’s functioning is impacted by those exacerbations, particularly in circumstances where the Applicant’s own evidence before the AAT1 was that any exacerbations are eased by Ventolin (T2/8). The Secretary contends that it is in that case difficult to determine the severity, duration and frequency of these episodes, to determine whether an impairment rating ought to be assigned.
48 The Secretary further contends that the evidence in support of this impairment receiving a rating under the Tables, in particular the JCA report dated 30 June 2023, does not account for the preponderance of medical evidence which now suggests that the Applicant’s left chest wall pain is a separate, and for the reasons outlined below, non-permanent impairment.
49 Where the Applicant’s left chest wall pain has long been identified as having an impact on his ability to complete activities of daily living (T44/161; T48/182; T35/147), and is not a permanent impairment in and of itself, it is not possible to assign a rating to any functional impairment caused by the permanent condition unless the Tribunal can be satisfied of the degree to which that condition, and only that condition, causes the reported functional impairment (Pignat and Secretary, Department of Social Services [2017] AATA 2745 at [22]). The question is whether the permanent medical condition “makes a real or operative contribution to the impairment”.
50 Even where the Tribunal is satisfied that this condition warrants an impairment rating (which is not conceded), it can be no greater than 10 points under Table 1, consistent with the report of the JCA (T48/183). The 20-point descriptor for Table 1 requires that
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
51The Secretary contends that based on the above evidence, it cannot be said that the Applicant was ‘usually’ experiencing the symptoms of his asthma, in circumstances where symptoms only occurred in response to specific triggers. In terms of the Applicant’s functioning itself, given the Applicant reported to be able to walk without difficulty and Dr Lavrencic’s opinion that the Applicant’s symptoms at rest would not preclude work, the Secretary contends the Applicant would be unable to achieve a 20 point rating (T45/164).
(citations omitted)
The Applicant told the Tribunal that his asthma and left chest wall pain condition affect each other and that both affect his breathing and ability to function and to undertake physical activities. The Tribunal does not dispute this and considers that the evidence before it supports such a finding.
The present issue for the Applicant is that (as discuss further below) although his left chest wall pain is likely to result from his asthma, they are two distinct conditions of which both contribute to the same functional impairments. Sections 10(5) and 10(6) of the Determination provide the following in relation to multiple conditions causing a common impairment:
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Further section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent.
As such, without being able to separate the functional impairments resulting from the Applicant’s asthma and left chest wall pain conditions and in the absence of corroborating medical evidence of the impairment attributable to the asthma, it is not possible to assign an impairment rating under the Impairment Tables for only one of the conditions. Therefore in circumstances where both conditions are not found to be fully diagnosed, fully treated and fully stabilised neither condition can be assigned an impairment rating.
Based on the evidence before it, the Tribunal finds that the Applicant’s asthma condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. However as the functional impairments resulting from the Applicant’s asthma condition are inseparable from those resulting from his left chest wall pain condition, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Left Chest Wall Pain Condition
The Respondent contended that the Applicant’s left chest wall pain condition could not be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Respondent relied upon the following evidence:[41]
[41] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 11-12, paragraph 52.
(a) Dr Cramp on 26 September 2017 and 24 January 2018 noted that the symptoms of the applicant’s occupational asthma included ‘SOB/wheeze/ chest pain when exposed to work environment’ (T8/68)
(b) Dr McKeon diagnosed the Applicant with left costochondritis (T12/72).
(c) The medical certificates of Dr Williams no longer note chest pain as a symptom of the occupational asthma (T13/79; T15/84).
(d) Dr Jackson on 23 August 2019 considered the Applicant’s chest pains were ‘manageable and will not prevent all work’.
(e) In a medical certificate dated 17 November 2020 Dr Obertik listed the Applicant’s chest pain as a symptom of his asthma (T20/90).
(f) Dr Obertik continued to list chest tightness as a symptom of the Applicant’s occupational asthma condition as recently as August 2021 (T25/99).
(g)On 14 December 2022 Dr Obertik diagnosed the Applicant with musculoskeletal chest pain, which had an unclear prognosis. At that time, the Applicant was awaiting review with a pain specialist (T31/105). He remained on that waitlist as at the date of the DSP Medical eligibility assessment on 15 January 2023 (T35/147).
(h) On 27 February 2023 Dr Chatham diagnosed the Applicant with costochondritis secondary to occupational asthma, no prognosis was provided and current treatment was listed as avoiding exposure to allergens (T40/155).
(i) Dr Obertik in her report dated 1 March 2023 noted that the Applicant’s pain did not have a clear aetiology and that ‘investigations had failed to guide this diagnosis (T41/156).
(j) Ms Major and Dr Corser in their report dated 16 May 2023 noted that the Applicant reported pain his chest from simple activities such as cleaning his home. He continued to be on a waitlist for pain management and found the pain ‘emotionally and physically exhausting’ (T44/161).
The Respondent further contended that:[42]
53 Further, the primary issue that the Applicant complains of as a result of his left chest wall condition is pain. It has been recognised that “of all approaches to the treatment of chronic pain, none has stronger evidence basis for efficacy, cost-effectiveness, and lack of iatrogenic complications than interdisciplinary care….typical treatment provided includes three common elements: (1) medication management, (2) graded physical exercise, and (3) cognitive and behavioural techniques for pain and stress management.” In Australia, the National Pain Strategy (2010) emphasizes the need for “coordinated multidisciplinary assessment and management involving, at a minimum, physical, psychological and environmental risk factors in each patient” and recognises that interdisciplinary care has the strongest evidence-basis for positive outcomes.
54 Pain management clinics utilise multi-disciplinary teams to treat chronic pain, and typically provide psychological counselling, physical therapy (eg from a physiotherapist or occupational therapist), and vocational counselling as well as pharmacological treatment and consideration of further interventions. Doctors specialising in pain medicine, anaesthesia, neurology, rheumatology, psychiatry and/or rehabilitation medicine will also be involved in the delivery of appropriate treatment, including establishing an appropriate pharmacological treatment regime. No evidence has been provided that there is no pain management clinic within a reasonable distance of the Applicant’s home, nor that the wait list would be unreasonable.
55 The Secretary contends there is clear evidence from Dr Obertik that, during the qualificiation [sic] period, the aetiology of the Applicant’s left chest wall pain remained unknown, such that it cannot be considered fully diagnosed. Even in circumstances where the Tribunal were to accept that the condition was fully diagnosed the Secretary contends that treatment following the qualification period, or scheduled outside the qualification period leads to the finding that the impairment is not fully treated and stabilised.
(citations omitted)
[42] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 12-13, paragraphs 53-55.
The Tribunal accepts that the Applicant’s left chest wall pain condition was fully diagnosed during the Relevant Period as costochondritis. This diagnosis was made by Dr James McKeon, thoracic and perioperative physician in a report dated 8 May 2018 and has continued to be referred to by his treating doctors as either left chest wall pain or chronic musculoskeletal chest pain.
The Tribunal understands that costochondritis is inflammation of the cartilage that connects ribs to the breastbone and that the cause of the condition is usually not known however in some circumstances develops after trauma or a muscle strain (such as severe coughing).[43]
[43] Mayo Clinic, ‘Costochondritis’, Diseases & Conditions (Web Page) <
Having considered the evidence before it in totality, the Tribunal prefers the medical evidence that the Applicant’s left chest wall pain condition is a secondary condition to his asthma condition. The Tribunal notes however that there has been no suggestion that these conditions form a single condition, although even if there was it would not assist the Applicant in the present situation.
There is no evidence before the Tribunal that suggests that there is no treatment available that could improve the Applicant’s left chest wall pain condition to an extent that would allow him to engage in work or study within two years of the Relevant Period. Instead there is evidence that his previous general practitioner, Dr Obertik had at some point referred the Applicant for review by a pain team[44] and that he was during the Relevant Period awaiting treatment at the Pain Management program at the Sunshine Coast University Hospital.[45]
[44] Exhibit 1, T Documents, T31, page 105, Medical Certificate.
[45] Exhibit 1, T Documents, T35, page 147, DSP Eligibility Assessment Recommendation Report.
The Applicant gave evidence that he had not heard anything from the hospital in relation to him being on a waiting list. There is little evidence before the Tribunal to suggest that the Applicant’s left chest wall pain condition was reviewed by a specialist, treated or had stabilised.
The Tribunal agrees with the contentions outlined by the Respondent about the benefits of pain management clinics and notes that in Walker and Secretary, Department of Social Services [2021] AATA 1767 at [42], Dr Todhunter, a pain management specialist, gave evidence that “people do have improved function and less distress” as a result of pain management programs.
In the absence of either engagement in specialist pain treatment or medical evidence that participation in such treatment would not assist the Applicant to engage in work or study within the next two years of the Relevant Period, the Tribunal cannot be satisfied that his left chest wall pain condition was fully treated and fully stabilised during the Relevant Period.
Consequently, based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s left chest wall pain condition was not permanent for the purposes of applying the Impairment Tables. As such the Tribunal is unable to assign an impairment rating under the Impairment Tables for this condition.
Mental Health Condition
The evidence before the Tribunal indicates that the Applicant had engaged in psychological treatment both prior to and during the Relevant Period.[46] In particular the Applicant attended psychological treatment with Ms Paula Major, provisional psychologist and Dr Diane Corser, clinical psychologist on 23 and 31 March 2023, 21 and 28 April 2023 and 11 May 2023.[47]
[46] Exhibit 1, T Documents, T17, page 87; T18, page 88; T19, page 89; T22, page 96; T23, page 97; T41, page 156, Medical Certificates.
[47] Exhibit 1, T Documents, T42, page 158, Medical Certificate by Ms Paula Major and Dr Diane Corser and T44, pages 161-162, Report by Ms Paula Major and Dr Diane Corser.
In a report dated 16 May 2023, Ms Major and Dr Corser provided:[48]
As well as the constant threat of serious illness because of a severe asthma attack in everyday living and the work environment, [the Applicant's] restrictions and avoidance behaviours designed to keep himself safe from triggers results in self-isolation and depression. Together with not being able to find suitable work due to the restrictive nature of his asthma triggers and being unable to find an employer willing to accept liability for his condition and well-being, [the Applicant's] self-esteem and sense of failure has led to extremely low moods, exhaustion, and consideration of suicide. He also compares himself to his previous high physical capacity and ability to succeed prior to his medical conditions and is struggling to come to terms with his present restricted capacity and inability to support his family. Such symptoms and stresses exacerbate and maintain his severe anxiety and depression.
[The Applicant] has been under the care of previous psychologists but reports failing to gain benefit (Dr. Tanya Obertik, On Point Family Practice, 01/03/23).
Based on his clinical assessment, [the Applicant] meets DSM-S-TR criteria for Depressive Disorder, Severe, with Anxious Distress Moderate-Severe (F32.2) and Generalised Anxiety Disorder (F41.1). [The Applicant] has been provided a cognitive behavioural treatment over the 5 psychology appointments. His symptoms persist despite this treatment. I understand his medical issues are chronic and ongoing; it is likely therefore that [the Applicant's] symptoms may be maintained for at least the next two years.
[48] Exhibit 1, T Documents, T44, page 162, Report by Ms Paula Major and Dr Diane Corser.
The Respondent contended that the Applicant’s mental health conditions were fully diagnosed during the Relevant Period based on the evidence of Ms Major and Dr Corser.[49] The Respondent further contended that those conditions could not be considered fully treated and fully stabilised during the Relevant Period[50] providing that:[51]
…. in circumstances where Ms Majors [sic] and Dr Corser noted that psychological treatment was ongoing during the qualification period, the impairment could not be considered fully treated and stabilised at that time. While the Secretary acknowledges the Applicant’s previous engagement with psychologists in respect of his mental health, the contemporaneous records show that there were some barriers to the Applicant fully engaging in that treatment, such that it cannot be said to have been exhausted.
[49] Exhibit 2, Respondent’s Statement of Facts & Contentions, page 13, paragraph 56.
[50] Exhibit 2, Respondent’s Statement of Facts & Contentions, pages 14-15, paragraphs 57-58.
[51] Exhibit 2, Respondent’s Statement of Facts & Contentions, page 15, paragraph 58.
Consistently with the decision in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558; (2013) 138 ALD 180 the Tribunal finds that the Applicant’s depression and anxiety conditions were fully diagnosed during the Relevant Period, on the basis that the report of Ms Major and Dr Corser referenced observations made during the Relevant Period.
While the Tribunal accepts that the Applicant has engaged in various psychological treatments since 2019, it cannot be satisfied that his mental health conditions were fully treated and fully stabilised during the Relevant Period where he was continuing to be seen by Ms Major and Dr Corser. The Tribunal understands that the Applicant was required to attend at least five appointments so that a full assessment could be made.
The Tribunal notes that Ms Major and Dr Corser reported outside of the Relevant Period that the Applicant’s symptoms persisted despite their treatment and that they were likely to be ongoing due to his chronic medical issues. Of note, Ms Major and Dr Corser did not recommend any further treatment, however made no reference to the state of Applicant’s mental health condition during the Relevant Period.
Based on the evidence before it the Tribunal finds that during the Relevant Period the Applicant’s mental health conditions were not fully treated and fully stabilised. As such the Tribunal is unable to assign impairment points under the Impairment Tables for the Applicant’s mental health conditions.
The Tribunal notes that the opinions provided by Ms Major and Dr Corser and the DSP Questionnaire completed by Dr Hanley are not of assistance to the present claim before the Tribunal as they do not refer specifically to the state of the Applicant’s condition during the Relevant Period, however they may be applicable to future claims for the DSP.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant did not have a total of 20 impairment points either under one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether he met the requirements of section 94(1)(c) of the Act.
CONCLUSION
There is no doubt in the Tribunal’s mind that the Applicant would work if he was able. The Tribunal was impressed with the Applicant’s dedication to ensuring that his children were as far as possible unimpacted by his medical conditions. He is determined, despite his pain, physical limitations and poor mental health, to be a hands-on father to them. It was clear that it is the support that the Applicant receives from his wife and family and his love for them and his children that keep him focused on moving forward in the best way he can.
The Applicant advised the Tribunal that he has made subsequent claims for the DSP. In the Tribunal’s view further claims for DSP made by the Applicant may benefit from the involvement of the Respondent’s Health Practitioner Advisory Unit. Further it may be beneficial for the Applicant to engage fully with support should it be offered to him by Legal Aid Queensland.
As explained to the Applicant at the Hearing, each claim for the DSP must be considered in relation to the associated Relevant Period. For the reasons outlined above, the evidence before the Tribunal does not allow it to be satisfied that the Applicant met the DSP requirements between 11 January 2023 to 12 April 2023. That is not to say that he will not meet them at another point in time.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s:
(a)occupational asthma condition was fully diagnosed, fully treated and fully stabilised and could be assigned zero impairment points on Table 1 of the Impairment Tables.
(b)left chest wall pain condition and mental health conditions were fully diagnosed but were not fully treated and fully stabilised and therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.
The Tribunal finds that during the Relevant Period, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments did not attract 20 points or more under the Impairment Tables.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..................................[SGD].............................
Associate
Dated: 18 April 2024
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Date of hearing: 8 March 2024 Applicant: In Person Solicitors for the Respondent: Mr Chris West
Services Australia
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