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

[2022] AATA 362

Thompson and Secretary, Department of Social Services (Social services second review) [2022] AATA 362 (6 January 2022)

Division:GENERAL DIVISION

File Number(s):      2020/1569

Re:Clive Ian Thompson  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Cox

Date:6 January 2022

Place:Adelaide

The decision under review is affirmed.

..........................[Sgnd]............................

Member Cox

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables – whether applicant attracts 20 points – irritable bowel syndrome – absence of diagnosis during qualification period – decision affirmed

LEGISLATION

Social Security Act 1991

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Member Cox

6 January 2022

1. On 30 May 2019 the Applicant claimed Disability Support Pension (DSP).

2. The conditions listed on the Applicant’s claim form are asthma, hypertension, hyperlipidaemia, chronic diarrhoea, gastro-oesophageal reflux disease (GORD), osteoarthritis of the knees and spine, chondromalacia patellae, sleep apnoea (OSA), ischaemic heart disease (HD), tennis elbow, tinnitus, vivax malaria, right shoulder impingement, and rotator cuff tear.

3. On 30 May 2019 Centrelink determined that the Applicant was not qualified for DSP as he did not have the required 20 impairment points.

4. The Applicant asked for an internal review of the decision to reject his claim for DSP.

5. On 29 November 2019 an authorised review officer (ARO) found that the following conditions are fully diagnosed, fully treated and stabilised, and assigned the following impairment points to each:     

Condition	Impairment Table	Points
Spinal condition	4 – Spinal	5
Knee osteoarthritis	3 – Lower limb	0
Shoulder condition	2 – Upper limb	0
Abdominal conditions	10 – Digestive	5
OSA, asthma, cardiac conditions, hypertension and hyperlipidaemia	1   - Exertion and stamina	5

1. The ARO therefore found that the Applicant did not have the required 20 impairment points.

2. The ARO also found that the Applicant had the capacity to work in a sedentary role for at least 15 hours per week within the next two years and that he had not met the program of support requirements.

3. On 18 December 2019 the Applicant made an application for review by the Tribunal (AAT1).

4. On 12 February 2020 AAT1 affirmed the decision to reject the Applicant’s claim for DSP.

5. This decision was based on the following findings.

6. AAT1 assigned 20 points to the Applicant according to the impairment tables, as follows:

   
   
   

Impairment Table	Points
4 – Spinal	5
3 – Lower limb	0
2 – Upper limb	5
10 – Digestive	5
1 - Exertion and stamina	5

1. The Applicant therefore satisfies paragraph 94(1)(b) of the Social Security Act 1991 (the Act).

2. As the 20 impairment points were not obtained under a single Impairment Table the Applicant did not meet the criteria for severe impairment as defined by subsection 94(3B) of the Act.

3. The Applicant had given evidence that he had not undertaken a program of support. As a result he did not satisfy paragraph 94(2)(aa) of the Act which determines a continuing inability to work where a person’s impairment is not severe.

4. For the reasons set out in paragraphs 13 and 14 above the Applicant did not satisfy paragraph 94(1)(c).

5. On 18 March 2020 the Applicant made an application for a review of the AAT1 decision.

6. On 14 December 2020 a hearing was held in Adelaide. The Applicant was self-represented. He was accompanied by his wife who also gave evidence.

7. The issue in dispute is the assignment of 5 impairment points, and not more, to the Applicant’s abdominal condition under Impairment Table 10.

8. The Applicant’s wife provided evidence in which she attributed his irritable bowel syndrome (IBS) to his military service on Bougainville between January and July 2002. Despite the Army’s normal vaccination and medical protocols, he contracted parasites and vivax malaria. She provided the following written evidence of the Applicant’s condition: 

   “Since my husband Clive came back from his peace keeping mission from Bougainville New Guinea, he has suffered with the worst crippling pain, cramps, diarrhea, gas, bloating and urgency ever; feeling frustrated and exhausted and embarrassed, missing out on activities because of pain, avoiding situations where there is no bathroom nearby. Dealing with symptoms that are unpredictable, disappear and return unexpectedly or change over time. Now since then over the years he has gone to so many Doctors, Specialist had probes, x-rays, ultrasounds, scans, he even had allergy testing. He tried medication and many different diets, but nothing worked. So he gave up, said this is it, “this is my life” I’ll just have to live with it; until he was finally diagnosed with IBS.  
   
   There has been some improvement with a FODMAP diet, it’s not a cure, but it did help, by reducing his diarrhea from 17 times a day to 6 times somedays or 8-12 times mostly. But sometimes he is in and out of the toilet 7 or 10 times in an hour, crossing his legs and trying to squeeze his arse cheeks tightly together to get to the toilet with diarrhea urgency and with crippling pain, cramps, and gas. At least he knows what his problem is now IBS and remember how long this has been going on for him, day in day out, yes since 2002 18 years with the worst continuing constantly crippling pain, cramps, diarrhea, gas, bloating and urgency ever; How do you think you’d feel???”

9. The Tribunal asked the Applicant how many times a day he typically had diarrhea in May 2019 when he claimed DSP. The Applicant responded, an average of 12 times during the day between 6.30am and 8pm and at least once each hour.

10. The Tribunal asked the Applicant how many times a day he typically had diarrhea now. The Applicant responded, “not much difference”.

11. The Applicant explained how difficult his diarrhea is to manage in the workplace when he has been employed. The frequency severely impairs his work efficiency, he suffers severe embarrassment, and his condition affects the comfort and attention of co-workers.

12. The Applicant and his wife gave credible evidence that his IBS justifies a higher impairment rating than the 5 points assigned by the ARO and AAT1. However, the introduction to Table 10 of the impairment tables says: “The diagnosis of the condition must be made by an appropriately qualified medical practitioner”. Self-report of symptoms alone is insufficient.

13. There must be corroborating evidence of the person’s impairment. Examples of corroborating evidence for the purposes of the Table include, but are not limited to, the following: a report from the person’s treating doctor; a report from a medical specialist (such as a gastroenterologist, a gynaecologist, an urologist or an oncologist) confirming diagnosis of a digestive or reproductive system condition; and results of investigations (such as X-Rays or other imagery, endoscopy or colonoscopy).

14. AAT1 referred to a Verification of Medical Condition(s) report dated 22 May 2019 (T44, pp 175-177) from the Applicant’s general practitioner Dr Christina Cheung, which included chronic intermittent diarrhea since 2002, with occasional soiling, for which he had previously seen a specialist and no cause had been found. There was no comment on frequency of diarrhea or accidents, or of any abdominal pain, as would be required for the Applicant to be assigned more than 5 points from Impairment Table 10 as the ARO had done.

15. AAT1 also referred to a letter dated 16 October 2019 from a gastroenterologist, Dr Sandy Craig, following an appointment with the Applicant the previous day which said:           

    “Diagnosis and Management:
    Irritable bowel syndrome. Low FODMAP diet effective.       
    Clive’s had a good response to the low FODMAP diet and has worked out that if he strays from the diet (which he did at a wedding last weekend) he quickly has problems with bloating and diarrhea. He’s happy to continue working on the diet long-term.”    

16. This letter is particularly significant because it provides a diagnosis for the Applicant’s symptoms of diarrhea. However, because it was received more than 13 weeks after he made his claim for DSP the Tribunal is unable to find that this condition was fully diagnosed during the qualification period.

17. On 19 May 2020 Dr Cheung wrote to Centrelink setting out a history of the Applicant’s IBS, the letter says:           

    “This letter is to inform you of additional information regarding Mr Clive Thompson’s severe digestive problem diagnosed as Irritable Bowel Syndrome by Dr Sandy Craig. This condition has been present since 2002 consisting of frequent explosive diarrhoea, abdominal cramps, bloating and increase flatus on a daily basis.         
    
    He was referred to Dr John Ring in 2006 and was treated with Fasigyn? Giardiasis and performed colonoscopy in Oct 2006 which was normal. Endoscopy showed Grade 2 Gastro Oesophiageal Reflux Disease and was symptomatic at the time.  Coeliac test and allergy testing were also normal.

    In Nov 2006 I treated him with Somac for his reflux symptoms which improved.  He has been on Somac since. Clive went back for review with Dr Ring in Nov 2006 and his diarrhoea settled. Hence Dr Ring thought the diarrhoea was due to Giardiasis a bowel infection. Clive informed me that within weeks of the review with Dr Ring his diarrhoea recurred and has been persisting since. I also referred him for faecal test which were normal.          
    
    He was then referred to a different gastroenterologist Dr Sandy Craig in Aug 2019 who suggested a low FOMAP diet which has only partially improved his symptoms. 
    His IBS is still severe and disabling at present. Still having to go to the toilet to open his bowel 9-10x/day. Occasionally still has to go 15x/day. He spends approx 15mins in the toilet each time. Still soiling 2x/week which is embarrassing to himself and his co workers and affect the comfort & attention of his co workers.  In addition his soiling is also a health and hygiene problem at work. He lost his job as a supervisor 5 years ago because of his bowel problems and is also the reason why he has been unable to get a job in the last 5y.       
    
    As a result of his above digestive problem there is a severe functional impact on work related activities as well as daily activities due to his symptoms and personal care needs associated with his digestive problem.          
    
    All of the following apply to Clive Thompson:
    - His attention and concentration at a task is frequently [at least once every hour] interrupted or reduced by abdominal cramps & pain and frequent bowel motions 9-10x/day and personal care needs resulting from episodes of soiling.        

    - He is unable to sustain work activities or other task for a total of more than 3 hours/day even with regular breaks due to his symptoms which require 15 mins for each visit to the toilet.

    - His soiling will affect the comfort and attention of his co-workers. 
    
    In addition I do not think he will be able to participate in any program to help him find and maintain employment.

    His condition will probably remain the same in the next 2 years as it has been present since 2002.”

18. Dr Cheung’s letter covers the frequency of diarrhoea occurrences not covered in the Verification of Medical Condition(s) report dated 22 May 2019 which was cited by AAT1 as the reason only 5 points could be assigned for Table 10, see paragraph 25. However, this letter also includes a chronology of medical investigations, including a colonoscopy and faecal test which were normal, which show that there was no actual diagnosis until Dr Craig’s letter of 16 October 2019. 

19. The Tribunal therefore finds that, despite the fairly consistent history of the condition since 2002, IBS did not meet the definition of a permanent condition set out in paragraph 6(4)(a) of the Act because it had not been fully diagnosed by an appropriately qualified medical practitioner.

20. Because the condition did not meet that test during the qualification period the Tribunal has not considered the other three tests set out in subsection 6(4) which are that the condition is fully treated, fully stabilised and, more likely than not, in the light of available evidence, to persist for more than two years.

21. On the question of the weight that should be given by the Tribunal to medical evidence that comes into existence after the qualification period, the Respondent used as an authority Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 which was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following observations (at [31]-[33]):

    “In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period.”      

22. The Respondent contends that Bobera applies to the diagnosis.

23. The Tribunal finds that the absence of an IBS diagnosis during the qualification period, removes the possibility of assigning an impairment rating for this condition in respect of the qualification period for the claim for DSP made on 30 May 2019.

24. The Tribunal has considered the assignment of impairment scores for Tables 1, 2, 3 and 4 made by AAT1 and finds that they are correct, see paragraph 11 above.

25. The Tribunal finds that the Applicant has not undertaken a program of support.

26. The Tribunal finds that the criteria for a severe impairment rating are not met.

27. The Tribunal finds the Applicant was not qualified for DSP during the qualification period for the claim made on 30 May 2019 and the decision to reject the claim was correct.

28. The Tribunal advised the Applicant that it is open to him to make a new claim for DSP.       

29. The decision under review is affirmed.    

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of Member Cox.

............................[Sgnd]..............................

Legal Administrative Assistant

Dated:   6 January 2022 

Date of hearing:

14 December 2020

Applicant:

Self-Represented

Advocate for the Respondent:

Ms Jasmine Forsyth

Services Australia