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

[2021] AATA 4625

Taifalos and Secretary, Department of Social Services (Social services second review) [2021] AATA 4625 (14 December 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6486

Re:Chrisse Taifalos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:14 December 2021

Place:Brisbane

The decision under review is affirmed.

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

Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – Disability Support Pension – Whether medical conditions fully diagnosed, fully treated and fully stabilised – Whether 20 points or more under the Impairment Tables during the Relevant Period – Where points cannot be assigned under the Impairment Tables – Decision under review affirmed

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

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

REASONS FOR DECISION

Senior Member P J Clauson AM

14 December 2021

1. On 12 June 2019, Ms Chrisse Taifalos (the ‘Applicant’) applied for the Disability Support Pension (‘DSP’).[1] 

   [1] Exhibit A, T7, 85.

2. On 27 June 2019, the Department of Human Services (‘Centrelink’) assessed the Applicant’s application and concluded that a Job Capacity Assessment (‘JCA’) was required.[2]

   [2] Exhibit A, T9, 89.

3. On 16 March 2020, the Applicant was assessed by a registered psychologist for the purpose of a JCA report dated 17 March 2020. The JCA report recommended that the Applicant’s systemic lupus erythematous (‘SLE’) was fully diagnosed, treated and stabilised (‘FDTS’). The JCA further concluded that the SLE condition attracted 10 points under Table 7 of the Impairment Tables. Further, the JCA recommended that the Applicant’s depression condition was not FDTS and that her sleep apnoea and asthma conditions were fully diagnosed but not fully treated or stabilised.[3]

   [3] Exhibit A, T15, 125.

4. Following this, the Respondent rejected the Applicant’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment tables.[4]

   [4] Exhibit A, T17, 138.

5. The Applicant provided further material to the Respondent and was reassessed by an occupational therapist for the purpose of attempting to establish the Applicant’s medical eligibility for DSP and the assessor recommended that the Applicant’s claim for DSP be rejected on the basis of the JCA’s report of the 16 March 2020.[5]

   [5] Exhibit A, T20, 143.

6. The Applicant applied for a further review of the decision and the Authorised Review Officer (‘ARO’) affirmed the decision on the 2 July 2020 finding that during the Qualification Period the Applicant’s SLE was FDTS and caused impairments which attracted 10 points under Table 1 of the Impairment Tables. The ARO found however, that the Applicant’s depression condition was not FDTS and her asthma and obstructive sleep apnoea condition was fully diagnosed, but not fully treated and stabilised.[6]

   [6] Exhibit A, T23, 148.

7. The Applicant then sought review of the decision by the AAT1 and on the 2 October 2020, the AAT1 affirmed the decision under review finding that during the qualification period the Applicant’s SLE was fully diagnosed, but not fully treated and stabilised, the Applicant’s depression condition was not FDTS and her obstructive sleep apnoea condition was fully diagnosed, but not fully treated and stabilised. [7]

   [7] Exhibit A, T2, 3.

8. The Applicant then applied to the Tribunal for a further review of the decision on

   
   

   6 October 2020.[8]

   [8] Exhibit A, T1, 1.

   ISSUES

9. The issues for this Tribunal to consider are:

   (a)Whether, on 12 June 2019 or within the 13 weeks thereafter (the ‘Relevant Period’), the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;

   (b)Whether in 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;

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

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

   THE LEGISLATIVE FRAMEWORK

10. The governing legislation unless otherwise quoted, is the Social Security Act 1991
    (the ‘Act’) and the Social Security (Administration) Act 1999 (‘Administration Act’).

11. In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 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.

12. 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 13 weeks following the date of claim.[9] 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.[10]

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

    [10] 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].

13. 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’).

14. The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[11]  Essentially, the Tables are function based, rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of a person’s impairment.[12] That impairment 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.[13]

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

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

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

15. 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.

16. For a condition to be considered permanent it must be FTDS and, more likely than not, going to persist for more than two years.[14]

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

17. 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.[15]

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

18. 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 two 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]

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

19. ‘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.[17] 

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

20. 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.[18]

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

21. A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[19]

    [19] The Act, s 94(3B).

22. 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

23. The Applicant suffers from Physical Exertion and Stamina and Mental Health (Depression) conditions and it is not in dispute that she has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[20] 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,[21] 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.

    [20] Secretary’s Statement of Issues, Facts and Contentions, [32].

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

24. 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?

    Depression

25. It is the Secretary’s contention that the Applicant’s mental health condition was not fully diagnosed during the qualification period.

26. The evidence before the Tribunal relating to this condition is briefly referenced in by way of a passing mention of her other medical issues, a referral letter from the Applicant’s GP Dr Von Canning dated 28 August 2018 wherein she refers to “depression”[22] and in the report of Dr Vecchio, the Applicant’s specialist rheumatologist, dated 18 September 2018 wherein he refers to the one of the Applicant’s problems being “Cymbalta treated Dysthemia.”[23]

    [22] Exhibit A, T6, 72.

    [23] Exhibit H.

27. The Tribunal has also noted the Applicant told the JCA in interview that she had suffered symptoms of depression since she was in her teens and suffering from bad acne and later when she was enduring a marriage breakdown and divorce. The JCA report also noted that the Applicant had used anti-depressants on occasion from 1996 and last accessed psychological counselling in 2007. The report also states that the Applicant advised the JCA that she was to undertake 5 sessions of psychological counselling commencing on the 31 March 2020. The Applicant in the report noted her low mood which she said was exacerbated by the restrictions placed upon her lifestyle by her condition.[24]

    [24] Exhibit A, T15, 128.

28. This condition at the relevant period was verified however, it had not yet been diagnosed in a manner required by the Impairment Tables by either a psychiatrist or a qualified medical practitioner with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

29. The Tribunal notes that the Applicant commenced counselling sessions for psychological treatment and support with a clinical psychologist Madonna Schmierer on the 31 March 2020.[25] The Tribunal notes that this is a date significantly outside of the qualification period and thus the condition could not be considered to be fully treated and stabilised  during the relevant period.

    [25] Exhibit A, T19, 142.

    Asthma and Obstructive Sleep Apnoea

30. In relation to Asthma and Obstructive Sleep Apnoea, the Secretary accepts that these conditions at the qualification period were fully diagnosed.[26] However, the Secretary does not accept that the conditions were fully treated and stabilised.

    [26] Respondent’s Statement of Facts, Issues and Contentions, [48].

31. The report of the JCA indicates that these conditions were diagnosed and that, with regard to her asthma condition, the Applicant reported consulting with a Respiratory Specialist in the past but had ceased doing so after she had re-located in 2017. The Applicant reported to the JCA that she had used ‘puffer medication’ but that she had not been as compliant as her GP would have preferred.[27]

    [27] Exhibit 1, T15, 129.

32. The Applicant’s reporting to the JCA on her sleep apnoea condition was that she had undergone sleep studies and had consulted a Respiratory Specialist at an earlier time but had not continued with that course when she relocated in 2017. The Applicant also told the JCA that she employed a Continuous Positive Airways Pressure machine (CPAP).

33. However, there is no specialist medical evidence or reports which indicate that treatments such as medication or specialist intervention and review was undertaken during or before the Relevant Period.  Without that evidence, the Tribunal cannot be satisfied that the Applicant was unlikely to see significant improvement within two years.  Thus, the Tribunal finds that both conditions were not, during the Relevant Period, fully treated and stabilised. Accordingly, the Tribunal is unable to consider that either of the conditions were FDTS, meaning that they were not permanent conditions for which points under the relevant impairment tables could be assigned.

    Systemic Lupus Erythematous

34. It is the Respondent’s position that the Applicant did indeed suffer from SLE and that the condition had been fully diagnosed during the relevant period.[28] The Tribunal accepts that the Applicant’s condition was fully diagnosed at the relevant period.

    [28] Respondent’s Statement of Facts, Issues and Contentions, [35].

35. The Respondent, however, contends that the Applicant’s SLE condition was not, at the relevant period, fully treated and stabilised. The Respondent maintains that position notwithstanding the finding of the JCA,[29] and later that of the ARO, who both concluded that the Applicant’s SLE condition was fully diagnosed, treated and stabilised during the relevant period.

    [29] Exhibit A, T15, 125.

36. The Respondent contends that the medical evidence is affirmative of the AAT1 finding that the condition was not FDTS because the Applicant was still in a circumstance where her specialist rheumatologist, Dr Vecchio, was still trying to alleviate the symptoms of the condition and was attempting to stabilise the condition throughout the relevant period by applying and adjusting the Applicant’s medications. Thus, the Respondent says that the condition was not, during the relevant period, FDTS.[30] The end result of that submission, if accepted, is that the Applicant cannot be assigned any points under the impairment tables for that condition.

    [30] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.

37. The Tribunal, in order to form a view as to whether the Applicant’s condition was FDTS, can only rely upon the evidence that it has before it. The Tribunal has thus examined the historical path of the Applicant’s treatments as they applied in the relevant period.

38. The earliest report from Dr Vecchio on 18 September 2018,[31] notes that the Applicant was receiving ‘reducing doses of steroid and Hydroxychloroquine at 200mg bd’ for the condition in the hope that the condition would settle over time.

    [31] Exhibit A, T4, 60.

39. Dr Vecchio in his report of the 29 November 2018,[32] confirmed that the Applicant was still receiving the same dosage of Hydroxychloroquine but that he was ‘gradually weaning’ her steroid intake as she was showing dependence upon it. At the time of that report the Applicant was taking 6mg of Prednisone in divided doses which Dr Vecchio was reducing by 1mg each week. He reported further that the Applicant had a gastric intolerance to Naproxen and that he was withholding this medication as much as possible.

    [32] Exhibit A, T4, 63.

40. In a report dated 5 December 2018,[33] Dr Vecchio stated that the Applicant was being treated with Hydroxychloroquine 400mg and 10mg of Methotrexate weekly and that she had ceased a course of steroids (Prednisone) 50mg to zero over three months. Dr Vecchio also reported that the Applicant had been taken of a 750mg dose of Naproxen after 2 months because of GI intolerance.

    [33] Exhibit B, Attachment A.

41. Dr Vecchio in that same report stated that future treatment “depends on evolution” and provided a view by way of other information that: ‘condition is autoimmune prognosis and future treatment unknown and depends on progress and response to therapy’. These comments, in the view of the Tribunal, make the situation clear that at the point in time that Dr Vecchio wrote this report, he considered that he was still treating the Applicant’s SLE and that he was contemplating further medical interventions to assist, hopefully, in the stabilization of the condition.

42. It is further made clear to the Tribunal that as late as 14 June 2019, the Applicant’s condition was still being treated by Dr Vecchio with a view to reaching a stabilised state for the condition. Dr Sophie Moisiadis on the 14 June 2019, in a medical certificate relating to the Applicant’s SLE condition observed that the Applicant was being treated by Dr Vecchio who was employing medications to stabilise the Applicant’s condition and was fine tuning her treatment.[34]

    [34] Exhibit A, T18, 87.

43. Dr Vecchio in a report dated the 7 January 2020 to Dr Moisiadis, the Applicant’s GP,[35] discusses the Applicant’s state of her conditions and expressed what could only be described as his professional frustration at the lack of resolution of the Applicant’s SLE condition despite the therapeutic applications he had engaged.

    [35] Exhibit A, T14, 122.

44. Dr Vecchio also stated that the Applicant was initially helped by the use of Leflunomide but that she had an adverse reaction to it and had to be taken off it before Christmas. The Applicant in her additional evidence provided to the Tribunal stated that it was well before Christmas that she went off this medication. The adverse reaction required a large dosage treatment with steroids and these in turn caused other side effects which saw her withdraw fairly quickly from the use of them. Dr Vecchio noted further that at that time the Applicant was still receiving 200mg daily of Hydroxychloroquine and that he had prescribed the Applicant 4mg daily of Dexamethasone, justified as it acted to prevent nausea and as an immunosuppressive.

45. The Applicant, as reported by Dr Vecchio on the 8 January 2020,[36] commenced on a course of Mycophenolate. Further, the Applicant received a brief prescription of Dexamethasone 4mg daily to be withdrawn as soon as possible and that the Hydroxychloroquine daily 200mg continued and that the Prednisone as a maintenance steroid had to be discontinued because of undesirable side effects. The report also noted the Applicant’s gastric intolerance to NSAIDS.

    [36] Exhibit A, T14, 123.

1. It is clear to the Tribunal that up to the point of the report from Dr Vecchio referenced in the above paragraph, he was decidedly continuing to treat the Applicant with a view, to if not being able to cure the Applicant of SLE, then to be able to stabilise the condition to a point where the Applicant may be able to control her condition and regain a degree of physical versatility once more. It is thus the view of the Tribunal that the Applicant was receiving treatment well after the end of the relevant period with this goal still firmly in the mind of her treating specialist. There is nothing before the Tribunal to suggest that any of the treatment regimes upon which the Applicant was placed by Dr Vecchio could be said to have been unreasonable in the circumstances.

2. It was not until Dr Vecchio’s report of 2 February 2021,[37] that it became apparent that in his opinion, he considered that all reasonable treatments had been undertaken for the Applicant’s SLE condition. At that time, she was still receiving 200mg of Hydroxychloroquine daily and 10mg of Amitriptyline in the evening.

   [37] Attachment B to the Respondent’s Statement of Facts, Issues and Contentions.

3. Dr Vecchio’s report is indicative that he was hopeful of invoking an improvement in the Applicant’s condition during the relevant period but now conceded that having trialled the Applicant on the medications it was not likely that any improvement was to be achieved into the foreseeable future.

4. The Tribunal has also had regard to Dr Vecchio’s somewhat despondent reflections upon the Applicant’s condition during the relevant period that it was, notwithstanding the pharmaco-therapeutic interventions, “permanent, static and unmodifiable since 14 June 2019. I regard it as permanent and unlikely to change.”

5. Whilst the Tribunal accepts that this is the view now held by Dr Vecchio, it is nonetheless clear to the Tribunal that throughout the period since 2018 the Applicant’s condition had been treated on the basis of attempting to improve it to a point where, although it may still persist in a chronic form, the Applicant would be able to be placed in a situation where reasonable functionality and hope for some employment could be maintained. That required the Applicant to try a range of medication, which she continued to do until January 2020.  She did so. That Dr Vecchio considers the condition as stabilised, with the benefit of hindsight, from 2019 does not assist the Applicant, because during the Relevant Period she could not be said to have been fully treated.

6. The Tribunal acknowledges that many people suffer from chronic illnesses and that notwithstanding their plight do manage to hold responsible employment positions. It is to be understood therefore, that long term, chronic illnesses are not to be “deemed” to be fully treated and stabilised simply because of their nature. When an Applicant claims for the DSP it is necessary for them to establish that their condition is fully treated and fully stabilised before they can be awarded DSP.

7. The Tribunal accepts that the Applicant in this matter has had a miserable journey through the treatment processes for her SLE and that in retrospect the treatment had not resulted in the desired outcome of the Applicant’s being fully treated and stabilised to the point of being able to engage in work. However, the evidence available to the Tribunal indicates that at the relevant period the Applicant was still receiving reasonable treatment for the condition as evidenced in Dr Moisiadis’s medical certificate of the 14 June 2019.[38] That certificate outlines the treatment being applied by Dr Vecchio to stabilise symptoms and fine tune the treatment for the Applicant.

   [38] Exhibit A, T8, 87.

8. Her treatment as outlined above in the medical reports of Dr Vecchio of 7 January and 8 January 2020 respectively are clearly indicative that although Dr Vecchio may have been developing a degree of frustration at the recalcitrance of the Applicant’s SLE condition, at least as until 2 February 2020 Dr Vecchio continued to apply reasonable treatments to the Applicant’s condition.. It was not until his medical report of the 2 February 2020,[39] that Dr Vecchio conceded that having tried every justifiable treatment to the Applicant’s condition no other reasonable treatments were available and thus, by virtue of that her SLE condition was “….stable, permanent and unlikely to change in the foreseeable future”.

   [39] Exhibit B.

9. On that basis, the Tribunal is unable to conclude that the Applicant’s SLE, during the Relevant Period, was permanent. It cannot, therefore, assign any points under the impairment tables.

   CONCLUSION

10. As the Applicant does not have a total of 20 or more impairment points under the Impairment Tables, she does not satisfy the requirement under section 94(1)(b) of the Act. Therefore, she did not qualify for DSP during the Relevant Period. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work during the Relevant Period. The Tribunal notes that its findings do not apply outside of the Relevant Period, which is the only time period before the Tribunal.

    DECISION

11. The decision under review is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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

Associate

Dated: 14 December 2021

Date(s) of hearing:	19 May 2021
Date final submissions received:	4 June 2021
Applicant:	In person
Advocate for the Respondent:	Gillian Gehrke
Solicitors for the Respondent:	Services Australia