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

[2019] AATA 70

Suttor and Secretary, Department of Social Services (Social services second review) [2019] AATA 70 (30 January 2019)

Division:GENERAL DIVISION

File Number:           2018/0597

Re:Larry Suttor

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson

Date:30 January 2019

Place:Brisbane

The decision under review is affirmed.

............................[SGD]........................................

Senior Member P J Clauson

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Refusal – mental health condition – asthma condition – alcohol liver disease condition – whether impairments are of 20 points of more under the Impairment Tables  – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member P J Clauson

30 January 2019

INTRODUCTION

1. On 13 June 2017, Mr Larry Suttor (“the Applicant”) applied for the Disability Support Pension (“DSP”).[1] 

   [1]           Exhibit 1, T Documents, T9, Claim for DSP dated 13 June 2017.

2. On 1 August 2017, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2]

   [2]           Exhibit 1, T Documents, T21, Rejection of DSP dated 1 August 2017.

3. The Applicant then sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal, and on 16 January 2018 the original decision was once more affirmed.[3]

   [3]           Exhibit 1, T Documents, T2, SSCSD decision dated 16 January 2018.

4. Following this, the Applicant sought a second tier review of his matter by the General Division of this Tribunal, by way of an application dated 7 February 2018.[4]

   [4]           Exhibit 1, T Documents, T1, Application for review dated 7 February 2018, p. 1.

5. The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP, and did not have an inability to work.

6. On 10 July 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.

7. The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 13 June 2017, or within 13 weeks thereafter, being up until 12 September 2018 (“Relevant Period”).

8. On 12, 24 and 26 July 2018 the Applicant sought to provide further material. A directions hearing was conducted on 26 July 2018 (2 weeks after the conclusion of the hearing) and consequently, other than the material which was a copy of material already before the Tribunal, the additional material was not considered in making this decision.

   BACKGROUND

9. The part of the DSP Claim Form where the Applicant was asked to list any disabilities, illnesses or injuries has not been completed.[5]

   [5]           Exhibit 1, T Documents, T9, DSP Claim Form dated 13 June 2018, p. 80.

10. On 10 August 2017, the Applicant attended a face-to-face assessment with an Employment Services Assessor (“ESA”), who produced a report of the same date.[6] The ESA assessed the Applicant’s Baseline Work Capacity as being 8 – 14 hours per week, with a predicted capacity of 15 – 22 hours.[7]

    [6]           Exhibit 1, T Documents, T13, ESA report dated 10 August 2017, pp. 90-94.

    [7]           Exhibit 1, T Documents, T20, JCA report dated 22 May 2017, p. 108.

11. The ARO, upon review of relevant evidence provided to Centrelink, made the following findings of fact:[8]

    “Findings of Fact

    After careful consideration of the evidence, I have made these key findings:

    ·Your conditions of major depressive disorder with comorbid alcohol abuse, alcoholic liver disease, and asthma are not accepted as being permanent…for Disability Support Pension purposes.

    ·You do not have an impairment rating of 20 points or more.

    ·You do not qualify for Disability Support Pension.”

    [8]           Exhibit 1, T Documents, T17, ARO decision dated 3 November 2017, pp. 98-103. 

12. The SSCSD found that the Applicant’s conditions did not attract any Impairment Rating points under the Impairment Tables.[9]

    [9]           Exhibit 1, T Documents, T2, SSCSD decision dated 16 January 2018, pp. 2-7.

    ISSUES

13. The issues for this Tribunal to consider are:

    (a)whether, during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;

    (b)whether, at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

    (d)whether the Applicant has a continuing inability to work.

    THE LEGISLATIVE FRAMEWORK

14. The governing legislation unless otherwise quoted, is the Social Security Act 1991
    (“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).

15. In order for the Applicant to qualify for the DSP certain relevant criteria set out in section 94(1) of the Act, must be met:

    (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)the person has a continuing inability to work.

16. The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified within the 13 weeks following the date of claim.[10] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[11]

    [10] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.

    [11]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) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].

17. Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)
    (“the Impairment Determination”).

18. The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[12] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]

    [12]          Impairment Determination, s 5(1) – (2).

    [13]          Impairment Determination, s 5(2).

    [14]          Impairment Determination, s 6(1).

19. Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.

20. For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[15]

    [15]          Impairment Determination, s 6(4).

21. When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider 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.[16]

    [16]          Impairment Determination, s 6(5).

22. A condition will be considered fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level 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.[17]

    [17]          Impairment Determination, s 6(6).

23. “Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:

    (a)available at a location reasonably accessible to the Applicant;

    (b)is at a reasonable cost;

    (c)can reliably be expected to result in a substantial improvement in functional capacity;

    (d)is regularly undertaken or performed;

    (e)has a high success rate; and

    (f)carries a low risk to the Applicant.[18] 

    [18]          Impairment Determination, s 6(7).

24. An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[19]

    [19]          Impairment Determination, s 11(1)(a) and (c).

25. A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[20]

    [20]          The Act, s 94(3B).

26. In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.

    CONSIDERATION

27. The Applicant suffers from major depressive disorder, asthma and alcohol liver disease conditions and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[21] The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[22] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.

    [21] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, at [17].

    [22]          The Act, s 94(1)(b).

28. I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?

    Mental health condition – major depressive disorder

29. The Secretary accepts that the Applicant’s mental health condition was fully diagnosed during the Relevant Period. The Secretary relies upon the report of Dr Tom Moore, general practitioner, of 3 May 2017, wherein he stated that the Applicant was suffering from major depression.[23] This was confirmed by Dr Kachhap’s psychiatric report of 13 June 2017, which outlined a diagnosis of “major depressive disorder with comorbid alcohol abuse and a history of alcohol dependence”.[24]

    [23]          Exhibit 1, T Documents, T7, p. 53.

    [24]          Exhibit 1, T Documents, T10, p. 85.

30. The Secretary contends that the mental health condition of the Applicant is not fully treated and stabilised on the basis that Dr Kachhap’s report stated that psychotherapy would be an important part of the Applicant’s treatment, and that he would be seeing a psychologist the week following the report.[25]

    [25]          Exhibit 1, T Documents, T10, p. 85.

31. The Applicant was also commenced on antidepressant medication for the mental health condition by Dr Kachhap by way of Mirtazapine at an initial dosage of 7.5 milligrams, rising to 15 milligrams if the medication was well tolerated.

32. The Secretary contends that during the Relevant Period, conventional treatment for the condition remained ongoing and the condition therefore was not fully treated and stabilised.

33. The Applicant told this Tribunal that Dr Kachhap commenced him on 7.5 milligrams of Mirtazapine, however his general practitioner, Dr Moore, prescribed a higher dosage of 30 milligrams almost immediately. He told the Tribunal that he had seen Dr Kachhap once and had no follow-up appointments after that. Dr Kachhap, in her report, set out a three point treatment plan for the Applicant which included psychotherapy, medication with Mirtazapine and stopping alcohol consumption as he was commencing on the antidepressant.[26]

    [26]          Exhibit 1, T Documents, T10, p. 86.

34. Dr Kachhap’s reference to psychotherapy stated, “Psychotherapy will be an important part of his treatment to address the underlying psychological issues”.

35. The Applicant’s evidence regarding psychological treatment was that he had seen a psychologist once in hospital but no recommendations were made for ongoing treatment.

36. The Applicant gave evidence to this Tribunal that he now had another appointment with Dr Kachhap on 31 July 2018 for a further assessment, and that his assessment would be ongoing. He also restated his evidence that he had only been once to see Dr Kachhap, that he had not been told to keep going, and that he had not been referred again since 13 June 2017.

37. The Tribunal also had before it the JCA Report prepared on 10 August 2017, where the assessor noted that the Applicant had one consultation each with a psychiatrist and psychologist, and was taking medication for his condition. [27]

    [27]          Exhibit 1, T Documents, T13, p. 90.

38. The Tribunal has had regard to the medical evidence before it and also the evidence provided from the Applicant himself at the hearing regarding his major depressive disorder.

39. The Tribunal accepts that the Applicant’s mental health condition was fully diagnosed at the Relevant Period based on the diagnoses of Dr Moore and Dr Kachhap[28]. However, based on the evidence outlined the Tribunal does not consider the Applicant’s medical condition to be fully treated or fully stabilised as at the Relevant Period as the Applicant had not yet engaged fully with the plan put in place by Dr Kachhap. The Tribunal can therefore assign no impairment points to the Applicant’s mental health condition.

    [28]          Exhibit 1, T Documents, T7, p. 53; T10, p. 85.

    Asthma condition

40. The Secretary accepts that the Applicant was diagnosed with asthma by his general practitioner, Dr Moore, in June 2017.[29] However, the Secretary contends that this condition was not fully treated and stabilised in the Relevant Period.

    [29]          Exhibit 1, T Documents, T11 p. 87.

41. Dr Tom Moore noted in a Medical Certificate dated 11 August 2017 that the Applicant suffered severe asthma and that he took a Ventolin inhaler and a Seretide inhaler for the complaint.[30] He noted that this only offered limited control and on occasion he will need oral steroids to control flare-ups.

    [30]          Exhibit 1, T Documents, T15, p. 96.

42. In a medical certificate of 19 June 2017 Dr Moore indicates that the Applicant suffered from asthma, however no treatment is outlined in that Certificate.[31]

    [31]          Exhibit 1, T Documents, T11, p. 87.

43. In his evidence to this Tribunal, the Applicant confirmed that he has suffered asthma since he was a child. However, he was diagnosed with emphysema as well; this diagnosis is contained in a Medical Certificate from Dr Moore dated 12 April 2018.[32] It is to be noted that this Medical Certificate and this diagnosis are outside of the Relevant Period, and the Secretary contends that there is no evidence before the Tribunal that the Applicant was diagnosed with this condition prior to the Relevant Period.

    [32]          Exhibit 3.

44. The Applicant told this Tribunal that he was now using a walking frame and that he could walk approximately 100 to 150 metres using the walking frame. He told the Tribunal that he cannot walk to the bus stop as that is too far from the house, and he often relies on taxis or his daughter to drive him to appointments. He can drive a motor vehicle and he has, on occasion, borrowed his daughter’s car to drive to medical appointments.

45. He told the Tribunal that his wife, from whom he is estranged, comes to the house four days per week, and that she still lives there two days per week; however, she lives separately from him and they are not in a normal matrimonial relationship. On other days when she is not there, he lives by himself and cares for himself on those days.

46. The Applicant advised the Tribunal that his wife gives him insulin injections, and that she pre-cooks his meals and freezes them for him so that he is able to microwave them as he requires them.

47. The difficulty for the Tribunal in relation to the asthma condition is that there is not sufficient medical evidence to suggest that all reasonable treatment and management options for the asthma condition and any subsequent functional impacts of the condition have been undertaken. Further the Applicant, in his evidence to the Tribunal, was speaking in terms of the combined impairments of the asthma from which he was suffering at the Relevant Period, and those of emphysema which has been diagnosed outside of the Relevant Period.

48. The effect of the asthma upon the Applicant has to be considered as at the Relevant Period and the Tribunal is not in possession of sufficient medical evidence as at that Relevant Period to suggest that the condition had been fully treated and stabilised at that time.

49. The Tribunal accepts that the Applicant’s asthma condition was fully diagnosed at the Relevant Period, however as there is insufficient medical evidence to say that the asthma condition was fully treated and stabilised as at the date of the claim, the Tribunal is unable to assign any impairment points to the condition.

    Alcohol liver disease condition

50. The Secretary accepts that the Applicant’s alcoholic liver disease was fully diagnosed and relies upon Dr Kachhap’s report dated 13 June 2017.[33] However, the Secretary contends that this condition was not fully treated and stabilised as at the Relevant Period.

    [33]          Exhibit 1, T Documents, T10, p. 85.

51. Dr Moore, in a Centrelink Certificate dated 20 February 2017, stated that one of the Applicant’s primary conditions impacting his ability to work or study was “alcoholic [liver] disease” which was “temporary” and likely to last for three to 12 months.[34] The doctor then noted the symptoms as being “fatigue and poor concentration”.

    [34]          Exhibit 1, T Documents, T6, p. 52.

52. On 10 August 2017, the Applicant undertook an Employment Services Assessment, in which the report of Dr Moore dated 19 June 2017 was noted as providing a diagnosis of alcoholism.[35] Liver damage indications were noted in the form of liver spots on the hands and tremors. It was also noted that the Applicant had reduced his alcohol intake but there was little evidence of any significant treatment in relation to the condition.

    [35]          Exhibit 1, T Documents, T13, p. 91.

1. The Secretary noted the report of the Applicant’s general practitioner, Dr Moore, dated 10 August 2017, which stated that there are no treatment options for the condition, with his prognosis being poor;[36] and the undated report provided to this Tribunal which states that there is no treatment available to the Applicant on or before 15 February 2017 that would have made a significant improvement to his liver function and consequent problems with stamina and fatigue within two years.[37] These reports were inconsistent with the previous reports provided by Dr Moore, and no explanation for the inconsistency was provided.

   [36]          Exhibit 1, T Documents, T14.

   [37]          Exhibit 3.

2. The Applicant told this Tribunal that he had stopped drinking alcohol about four months prior to the hearing and that he was no longer dependent upon it. His evidence was that his alcohol dependence had caused the failure of his marriage. Dr Moore, his general practitioner, had told him that his alcohol dependence caused his liver issues and that he would die if he failed to give it up, so he stopped altogether.

3. The Applicant told the Tribunal in cross-examination that in relation to his functioning he had been “functioning okay but if I continued it would eventually kill me”. He also told the Tribunal that his liver condition would “affect the way he operated as he couldn’t afford to knock himself around”, but conceded that the condition did not really affect his ability to work. The Applicant told the Tribunal that he did not attend support groups as he did not need to.

4. Dr Moore, in an undated questionnaire which was constructed for Legal Aid relating to the functional impairments caused by the dysfunction of the Applicant’s liver, stated that the Applicant couldn’t walk in excess of 50 metres without the aid of a cane, and in excess of 50 metres he required a wheelchair.[38] The Applicant conceded that when asked about those comments, they in fact related to his emphysema as opposed to his alcoholic liver disease.

   [38]          Exhibit 3.

5. Dr Moore, in his clinical notes, indicates that the Applicant was referred for an ultrasound of his abdomen on 10 August 2017,[39] and the findings from that ultrasound were reported on 11 August 2017 as being “Mildly coarse texture of the liver with no obvious focal hepatic lesion. The correlation with the clinical condition, laboratory findings and follow-up ultrasound”.[40] The Applicant then underwent a further ultrasound of his abdomen on 18 May 2018 which concluded, “Difficult examination due to bowel gas and body habitus. Within this limitation there appears to be evidence of hepatic cirrhosis but no convincing liver lesion is demonstrated. The clinical picture will determine if further evaluation with CT is indicated”.[41]

   [39]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure A, p. 62.

   [40]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure A, p. 33.

   [41]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure A, p. 27.

6. These notes indicate that the alcoholic liver condition was still being investigated as at that date, which is outside of the Relevant Period, and that therefore the condition could not be considered to be fully treated and stabilised during the Relevant Period. The Tribunal also notes that it has no evidence before it from any specialist to which the Applicant has been referred for investigation, treatment or management of the condition.

7. Based on the evidence before the Tribunal I am satisfied that the Applicant’s alcoholic liver disease was fully diagnosed during the Relevant Period, however caused minimal functional impairment and was not fully treated and stablished. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.

   CONCLUSION

8. On the basis of the evidence before me, I am satisfied that the Applicant’s major depressive disorder, asthma and alcoholic liver disease conditions, were fully diagnosed, however were not fully treated and stablished as at the Relevant Period.

   CONTINUING ABILITY TO WORK

9. Given that the Applicant does not satisfy the requirement under section 94(1)(b) of the Act, it is not necessary for me to consider whether the Applicant had a continuing inability to work at the date of cancellation.

   DECISION

10. The decision to reject the Applicant’s claim for DSP on 1 August 2017 is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

............................[SGD]....................................

Associate

Dated: 30 January 2019

Date of hearing:	10 July 2018
Applicant:	By phone
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore