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

[2020] AATA 4938

Stanley and Secretary, Department of Social Services (Social services second review) [2020] AATA 4938 (2 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2671

Re:Paul Stanley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:02 12 2020

Place:Adelaide

The decision under review is affirmed.

............................[sgnd]................................

Senior Member B J Illingworth

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed

LEGISLATION               

Social Security Act 1991 (Cth) s 94.

Social Security (Administration) Act 1999 (Cth).

SECONDARY MATERIALS               

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011.

REASONS FOR DECISION

Senior Member B J Illingworth

02 12 2020

BACKGROUND

1. On 2 January 2019 Mr Stanley (“the Applicant”) lodged an application for a Disability Support Pension (“DSP”) with the Department of Human Services (“Centrelink”). He listed his medical conditions as including ulcerative colitis and cardiomyopathy. On 29 March 2019 an employee of Centrelink rejected that claim for DSP. The Applicant sought internal review of that decision.

1. On 15 January 2020 an authorised review officer (“ARO”) advised the Applicant that the decision under review was correct and by letter dated 20 January 2020 confirmed that decision. The ARO referred to three conditions which were fully diagnosed, fully treated and fully stabilised (“FDTS”) and attracted a combined impairment rating of 10 points under Impairment Table 1 – Functions Requiring Physical Exertion and Stamina namely, dilated cardiomyopathy, mitral regurgitation and ulcerative colitis. A claimed condition of adjustment disorder was not considered FDTS. The Applicant had not consulted a clinical psychologist or psychiatrist and accordingly he could not be given an impairment rating under Impairment Table 5 – Mental Health Function for that condition.

1. On 21 February 2020 the Applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT 1”) for a review of the ARO’s decision. By its decision dated 2 April 2020 the AAT 1 affirmed the decision of the ARO but found as follows:

• heart condition – Table 1 – FDTS, (Functions Requiring Physical Exertion and Stamina) 10 impairment points;

• ulcerative colitis – Table 10 – (Digestive and Reproductive Function) 0 impairment points;

• iron deficiency anaemia – condition resolved;

• adjustment disorder – psychiatric report dated 9 February 2020[1], reported 12 months post the application for DSP, no symptoms to warrant psychiatric diagnosis; and

• hyperthyroidism – appropriately managed and no significant impairment.

  [1] T14, Report of Dr Phillip Salonikis.

1. Hence the AAT 1 decided that the Applicant had a total impairment rating of 10 points and affirmed the decision of the ARO.

1. On 2 May 2020 the Applicant applied for review of the AAT 1 decision.

1. At the hearing the Applicant self-represented and gave evidence. The Respondent was represented by Mr Visser from Services Australia.

1. At the hearing the Applicant said he did not dispute the previous decisions of the ARO and AAT 1 with respect to his ulcerative colitis, iron deficiency anaemia or adjustment disorder. The application was solely directed to the impairment rating under Table 1 as it related to his heart condition. He said he was entitled to more than 10 points, and that his medical practitioner told him that he qualified for DSP as a result of that condition. Hence, he was pursuing the application.

ISSUES

1. For the Applicant to qualify for the DSP he must satisfy the provisions of s 94 of the Social Security Act 1991 (“the Act”) that:

(a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act;

(b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011 (“the Determination”);

(c)that he has a continuing inability to work; and

(d)that if he does not have a severe impairment which is defined as a score of 20 points under a single Table, the Applicant must have actively participated in a program of support.

1. Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. The condition must be ‘permanent’, which means that the relevant condition must be FDTS[2] as at the date of the claim or up to 13 weeks thereafter[3] (the “Qualification Period”). The Qualification Period in this matter is 2 January 2019 to 3 April 2019.

   [2]  Clause 6(4) of the Determination. 

   [3]  Schedule 2, Clause 4(1), Social Security (Administration) Act 1999 (Cth).

10.  In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:

(a)whether there is corroborating evidence of the condition;

(b)what treatment or rehabilitation has occurred in relation to the condition; and

(c)whether treatment is continuing or is planned in the next two years.

11.  A condition is fully stabilised if:[4]

(a)the person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

(b)if the person has not undertaken reasonable treatment for the condition:

(i)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or

(ii)there is a medical or other compelling reason not to undertake reasonable treatment.

[4]  Clause 6(6) of the Determination.

12.  In assessing the functional impact of permanent conditions under an Impairment Table, the diagnosis of the condition must be made by an appropriately qualified medical practitioner, and there must be corroborating evidence of the person’s impairment. Self-reporting of symptoms alone is insufficient.

13. The Respondent accepts that the Applicant has impairments and that s 94 (1) (a) of the Act was satisfied at the time of the claim and during the Qualification Period.

14.  The sole question for this Tribunal is whether, as a result of the Applicant’s heart condition, he had a severe impairment as provided in Table 1 – Functions requiring Physical Exertion and Stamina.

The Applicant’s evidence

15.  The Applicant is 59 years of age and lives alone with two greyhound dogs.

16.  He was previously employed as a welder at Mitsubishi, and on construction sites and with a car hoist manufacturer.

17.  The Applicant had a history of dilated cardiomyopathy and on 27 October 2016 he received a defibrillator implant. His symptoms included leaking heart valves.

18.  He subsequently went into cardiac arrest due to a defibrillator lead disconnecting. He was revived by a member of his shooting club and thereafter spent 20 days in hospital. When discharged from hospital he could not drive for 6 months. In June or July 2019, after the application for DSP, he spent a further 8 days in hospital.

19.  The Applicant was asked about his condition at the date of the claim and the Qualification Period. The Applicant said that initially he felt tired and lacked energy. He was short of breath. Then his condition improved. He walked everywhere. He walked his dogs two kilometres a day after which he did not feel too bad but was a little tired. He did all the housework which included vacuuming. He took his time so to avoid stress. He would usually feel tired and sometimes short of breath. He kept up with his gardening and lawn mowing. By January 2019 he drove to the shops. He also drove to his pistol club which was not within walking distance of his home. He drove to the Tribunal hearing.

20.  The Applicant competed in the 2019 Masters Games pistol shooting competition and won a bronze medal.

21.  The Applicant does not work in his profession due to potential interaction with the equipment and his defibrillator, but he may do stocktake for a wholesale supermarket business two shifts a year, for three hours each shift. This was the case in 2019. He was also a volunteer at his pistol club. That volunteer work was from about 1.00pm to 4.00pm and included helping set up the pistol range, putting out smaller targets and supervising new members. That work did not have a real impact upon him except at the end of the day he would feel tired.

22.  The Applicant explained experiencing some deterioration in his condition which resulted in him sometimes feeling tired or with shortness of breath. Everyday life can bring on the symptoms. When that occurred, he would sit down and watch television. His condition continues to be monitored and he has a device next to his bed. Day-to-day life can now result in him “collapsing” on the couch.

23.  As for his other medical conditions, the Applicant said his ulcerated bowel condition was under control. He is currently on medication with occasional flareups. He had a colonoscopy in February 2020, and he was given the “all clear”. They found a hernia in 2019 but that was not affecting the Applicant. As for his iron deficiency, he has been prescribed extra iron intravenously and that condition is now under control and has no impact on his daily life. The hyperthyroidism is treated by medication with no impact. As for his adjustment disorder, the Applicant’s general practitioner sent him to see a psychiatrist as a precautionary measure but there was no issue with his mental health and no impact upon his daily living.

24.  In cross examination the Applicant said that at about the time of the claim some of the duties he performed with his pistol club included brush cutting and riding on the lawn mower. He also had TAFE qualifications which enabled him to prune trees and cut fallen trees using a chainsaw. He did this work in the company of another person. He was dressed in protective clothing.

25.  The Tribunal asked the Applicant upon what basis he was applying for DSP. He said his treating general practitioner Dr Gadd told him he was entitled to 20 points and the DSP. The Tribunal explained to the Applicant the legislative scheme and Table 1 – severe functional impacts with respect to an impairment rating of 20 points. That Table reads as follows:

1. The person:

   (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.

26.  In response to questions from the Tribunal, the Applicant accepted that he could perform each of those functions referred to in subsections (1) (a) (i) – (iv) of the severe functional impact criteria in the above Table 1.

CONCLUSION

27.  The Applicant was an honest and impressive witness who clearly suffers a potentially debilitating illness. To his credit, he has maintained a commendable level of day-to-day activity and has worked hard to ensure that his conditions –  in particular his heart condition – has not prevented him from his daily functions; walking activities with his dogs and the enjoyment he gains from his pistol club activities and volunteering.

28.  In the report of his cardiologist Dr Burdeniuk dated 6 May 2019, approximately one month after the end of the Qualification Period, she wrote:

‘from a cardiac perspective [the Applicant] reports that he has been quite well. He is walking the dogs 3 km daily including up inclines without any limitations… He has no dizzy spells or funny turns.’[5]

[5] T17, page 292.

29.  In her report dated 25 November 2019 she reports:  

‘[the Applicant] reports that apart from joint aches, which he attributes to one of his colitis medications, he has been reasonably well. He just won bronze in the Master’s Games for rifle shooting. He denies any issues with shortness of breath on exertion or fluid retention and has had no palpitations or dizzy spells. He is able to walk the greyhounds for 5 km including up gentle inclines.’[6]

[6] T17, page 290.

30.  The Respondent in the Statement of Facts Issues and Contention’s at paragraph 4.32 referred to the report of the Applicant’s general practitioner that:         

‘The cardiologist’s comments stand in contrast to the comments of the Applicant’s GP (made approximately six months prior to the claim) where he described the Applicant has ‘poor exercise tolerance’ and suffers ‘fatigue’.’[7]

[7] T14, page 170.

31.  The Tribunal was advised that the Applicant has since successfully reapplied for DSP and that from June 2020 he has been in receipt of that pension. But to the Applicant’s credit, the functional impact that his condition was having upon him at the time of the application for DSP before the Tribunal, as described by the Applicant, did not demonstrate that he suffered a severe functional impact and that he was unable to perform those functions referred to in Table 1. At the time of the application for DSP and during the Qualification Period, the Applicant acknowledged he could perform those functions.

32.  It is unfortunate that the Applicant has maintained his application for DSP based on information he received from his general practitioner which was plainly wrong. There is no question that the Applicant suffers a very serious medical condition. He is to be considered at some stage in the future for a heart transplant. However, the legislative scheme is not directed to the seriousness of the condition. It is directed to the functional impact that the condition has upon his activities requiring physical exertion or stamina.

33.  The Applicant’s medical condition did not, at the time of the application for DSP or during the Qualification Period, entitle him to an impairment rating of 20 points. The Tribunal is reasonably satisfied that the Applicant’s condition did give rise to a moderate functional impact on activities requiring physical exertion or stamina and that the ARO and the AAT 1 were correct in awarding 10 points in consequence of his heart condition.

34.  For completeness, the Tribunal has also considered each of those other medical conditions referred to by the Applicant and is satisfied that no one injury enlivens an impairment assessment in respect of the relevant Table. Accordingly, the Applicant did not, at the time of filing his application for DSP or during the Qualification Period, achieve an impairment rating of 20 points either as a combined total or under a single Impairment Table rating.

DECISION

35.  The decision under review is affirmed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

2.       

…………………[sgnd]……………………

Administrative Assistant Legal

Dated: 02 12 2020

Date of hearing:   15 October 2020
Advocate for the Applicant:                Self-represented
Advocate for the Respondent:            Mr Christian Visser, Services Australia