Van-Oostveen and Secretary, Department of Social Services (Social services second review)
[2015] AATA 713
•15 September 2015
Van-Oostveen and Secretary, Department of Social Services (Social services second review) [2015] AATA 713 (15 September 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1141
Re
Franciscus Van-Oostveen
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 15 September 2015 Place Brisbane The decision is remitted to the respondent for reconsideration.
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Senior Member Bernard J McCabe
Catchwords
SOCIAL SECURITY – disability support pension – medical criteria – allocation of impairment points – whether applicant’s conditions were fully diagnosed, fully treated and fully stabilised – continuing inability to work – whether applicant ought to be excused
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Bernard J McCabe
15 September 2015
Franciscus Van-Oostveen suffers from a number of long-term health conditions. He began receiving the disability support pension (the DSP) in 1991. Centrelink officers (acting on behalf of the respondent, the Secretary of the Department of Social Services) conducted a review of his entitlements in 2013 having regard to new impairment tables that had come into force. His DSP was cancelled on 4 October 2013. Mr Van-Oostveen did not appeal the cancellation decision. He made a fresh claim for the DSP on 27 July 2014. That claim was rejected. The decision-maker concluded ratings could not be assigned under the impairment tables in respect of Mr Van-Oostveen’s health conditions because they were not fully treated and stabilised. The authorised review officer was also not satisfied that Mr Van-Oostveen had a continuing inability to work.
The matter has now found its way to the Tribunal for reconsideration.
The medical criteria
A person claiming the DSP must satisfy a number of criteria, including the so-called medical criteria set out in s 94(1) of the Social Security Act 1991 (Cth) (the Act). Importantly, the claimant must satisfy the criteria at the time of the claim, or within a 13 week period thereafter (the review period). I am not allowed to focus on how the applicant is now; his condition may have deteriorated since the decision under review was made. I must focus on the position during the review period. In doing so, I may only have regard to information that was known, or which was knowable, during that period. I must also give particular weight to evidence from appropriately qualified experts. When I conduct the review up to a year or more after the original decision, I am not permitted to use the benefit of hindsight to answer questions which could not be resolved at the time.
The first of the medical criteria, in s 94(1)(a) of the Act, requires that I be satisfied the applicant has a physical, intellectual or psychiatric impairment. Section 94(1)(b) requires that the applicant be allocated at least 20 points under one or more of the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). I will have more to say about the assessment process below. The third criterion, in s 94(1)(c), requires that the applicant have a continuing inability to work.
The applicant’s impairments
Mr Van-Oostveen has a number of health conditions. The Secretary accepts the medical evidence establishes Mr Van-Oostveen suffers from the following impairments for the purposes of s 94(1)(a):
·Hepatitis C infection;
·Chronic obstructive pulmonary disease and emphysema;
·Spinal disorder connected with lumbar discopathy and forminal narrowing at L4/L5;
·Depression; and
·Osteoarthritis.
The Secretary did not accept the applicant suffered from cirrhosis of the liver, but there is some medical evidence from Dr Han (provided outside the period of review on 10 December 2014) suggesting (perhaps unsurprisingly, even to the layperson) that cirrhosis was present alongside hepatitis C – a condition that is known to damage the liver. Dr Han, the general practitioner who completed a treating doctor’s report in exhibit one suggested (at p 205) the cirrhosis condition had been present for “years”. Dr Carter, a physician at the Mater Hospital in Bundaberg, agreed with the diagnosis (exhibit one at p 215) but did not suggest a date of onset. There is no reason to doubt Dr Han’s opinion that the condition had been present for some time, and was almost certainly present during the period under review. I note Dr Carter’s reference to cirrhosis includes the notation “HCVA” which I understand to be a reference to the causal link between cirrhosis and hepatitis C. That annotation suggests cirrhosis is comorbid with hepatitis C. I am satisfied cirrhosis is present, although it may not make any practical difference to the analysis I must undertake. I note there are also references in the material regarding liver cancer: see, for example, report of Dr Han in exhibit one (at p 120). That condition also appears to be comorbid with hepatitis C.
The medical evidence suggests the applicant’s liver condition, which is substantially a product of his long-standing hepatitis C condition, is either the ultimate source of his other impairments, or complicates their treatment. There is no doubt his health is getting worse, and – judging by his oral evidence at the hearing – he is now in an increasingly desperate position. He spoke of the constant pain and an inability to walk or sleep. In one particularly horrifying piece of evidence, he spoke in a matter of fact way about how he would tie a belt around his neck until he passed out in the hope of getting some rest because he was otherwise unable to sleep. For the purposes of these proceedings, however, I must focus on the evidence that relates to the period under review.
Is it possible to allocate impairment points?
Section 94(1)(b) requires that an applicant be allocated at least 20 points under one or more impairment tables, as I have already explained. But the Determination which includes the impairment tables explains that points cannot be allocated in respect of an impairment unless the condition causing the impairment is fully diagnosed, fully treated and fully stabilised: s 6 of the Determination.
I have already concluded the applicant’s hepatitis C condition is fully diagnosed. But is it fully treated and fully stabilised? Dr Han, his general practitioner, mentioned in the treating doctor’s report completed on 24 July 2014 that Mr Van-Oostveen had been referred for specialist review. Dr Han reported (exhibit one at p 120) Mr Van-Oostveen was not then being treated for his hepatitis C infection. While Dr Han said the diagnosis was confirmed, the doctor noted the diagnosis was not at that point supported by further specialist opinion. I was not provided with a copy of the referral letter addressed to Dr Broom, a specialist in infectious diseases, who saw the applicant on 5 November 2014. Dr Broom confirmed in her report (exhibit one at pp 165ff) that there are no further treatment options available for the applicant’s hepatitis C. Dr Broom notes the applicant underwent interferon treatment 20 years ago, but that was unsuccessful; it seems he thereafter declined other treatments which may have been effective, preferring to take herbs and other natural remedies (see the report of Dr Kamenoff dated 19 July 2013, exhibit one at pp 50ff). Whatever might have been done in the past, Dr Broom’s report of 5 November 2014 (exhibit one at p 169) suggests there is nothing more that could be done at that point to treat the condition.
The applicant also saw Dr Bambery on 7 November 2014. Dr Bambery is the Director of Medicine and a rheumatologist at Bundaberg hospital. His report is reproduced in exhibit one at pp 176ff. Dr Bambery said that future treatment for the applicant included pain relief and non-steroidal anti-inflammatory drugs: at p 180. The non-steroidal drugs are presumably for pain relief and to address joint inflammation which the doctor noted as a clinical feature of hepatitis C.
Mr Van-Oostveen explained in his oral evidence that he had difficulty tolerating pain medication because of the state of his liver. He said Dr Broom told him there were few options for pain relief available in the circumstances. The report provided by Dr Broom does not expressly say that, but I think one could reasonably infer that is her view given she expressly said there were no treatment options available. As between Dr Broom and Dr Bambery, one would expect Dr Broom – the specialist with particular expertise in dealing with an infectious disease – would be in a superior position to advise on what treatment could be tolerated. The fact she said no treatment was available is consistent with Mr Van-Oostveen’s understanding.
Dr Han’s report was prepared just before the claim for DSP was lodged. The reports of Doctors Broom and Bambery were prepared more than 13 weeks after the date of claim, in November 2014. The Secretary says those reports cannot be taken into account. I disagree. I understand from Mr Van-Oostveen’s evidence that the appointments in November 2014 were the first available to him. He has limited access to specialist services because he lives in a regional area.[1] More to the point, Dr Broom would have said exactly the same thing if she had seen Mr Van-Oostveen two or three weeks earlier. His prognosis was knowable within the 13 weeks following the date of his claim; the fact the report about that prognosis was not prepared and received until after that date does not mean it should be ignored. (I note the Secretary is content to rely on medical evidence from Dr Han and Dr Carter that was provided in December 2014 in relation to the applicant’s spinal condition: see the Secretary’s Statement of Facts, Issues and Contentions at [119].)
[1] The applicant explained in evidence that staff from the electorate offices of his federal and state parliamentarians assisted him by driving him to and from medical appointments.
The Secretary says the hepatitis C condition did not attract any impairment points because it was well-managed and had little impact on his ability to function. The Secretary relied on the opinion of Dr Kamenoff dated 11 November 2013 (exhibit one at pp 77ff). The Secretary went on to argue that if the applicant were to be assessed, it was appropriate to have regard to table ten, which deals with digestive and reproductive function. It is unclear why that is the appropriate table, or the only appropriate table. The report of Dr Bambery refers to clinical features of hepatitis C as “fatigue, weight loss, mechanical joint pain – spine and hips, neck and shoulders”: exhibit one at p 180. To similar effect, Dr Broom reported “fatigue” and “weight loss” as clinical features (exhibit one at p 169) and added that fatigue impacted adversely on appetite and endurance. Dr Han speaks of lethargy, and diminished neurological and digestive function: exhibit one at p 122. In those circumstances, I would have thought the applicant should also (or alternatively) be assessed under table one, which refers to conditions that impact on physical exertion and stamina. I will return to this issue below.
The other conditions present some difficulty. I will deal with the depression first. The applicant has seen a number of mental health professionals since 1991 but there is no clear evidence of a diagnosis being made back then, or in 1998, or more recently when Dr Han reported symptoms of depression at the time of the claim. But Dr Han is not a psychiatrist. I can only accept a diagnosis from her if it is supported by reference to the opinion of a clinical psychologist: see notes to table five of the Determination. A letter from a clinical psychologist who saw the applicant on 28 July 2014 does not clearly record a diagnosis of depression: see exhibit one at p 153. I am therefore unable to accept the condition was fully diagnosed at the relevant time. As it happens, the report of Dr Han suggests the condition was generally well-managed (exhibit one at p 123), so it probably does not make any difference to the outcome of this case.
I turn next to the applicant’s spinal disorder. The Social Security Appeals Tribunal (the SSAT) concluded the condition was fully diagnosed, treated and stabilised. The Secretary now accepts that is correct, although the Secretary says only 5 points should be assigned whereas the SSAT allocated 10 points. I agree with the SSAT’s assessment of the applicant’s impairment in light of the job capacity assessor’s report of 18 August 2014: exhibit one at p 158. That report referred to:
·chronic back and hip pain,
·an inability to walk more than 100 metres, stand for more than 10 minutes, or sit for more than 20 minutes (I note the assessor recorded the applicant sitting for up to 45 minutes through the interview, but I also note Dr Kamenoff said on 27 October 2013 that the applicant was “unable to stand/sit in one position for long”, which tends to confirm the self-report: see exhibit one at p 90); and,
·limitations on his ability to twist his trunk, bend, and lift or carry light objects.
I am satisfied all that evidence indicates at least a moderate impact under table 4, which leads to an allocation of 10 points. I also note the assessor reported the applicant “necks himself” (chokes himself with a belt until he passes out) because the pain makes it difficult for him to sleep.
Mr Van-Oostveen’s chronic obstructive pulmonary disease and emphysema was fully diagnosed, but the Secretary says the condition was not fully treated and stabilised within the assessment period. The medial evidence in relation to this condition is not entirely consistent. Dr Han’s report of 24 July 2014 suggests the condition is generally well-managed: exhibit one at p 123. There is no suggestion of further treatment. But the condition was assessed by Doctors Broome and Bambery in November 2014. Dr Broom says the condition leads to “shortness of breath on minimal exertion”, fatigue and decreased endurance, and she expected the condition would deteriorate – but did not elaborate on treatment options (exhibit one at pp172-173). Dr Bambery observed similar functional impact (exhibit one at pp 183-184) but also failed to mention any treatment options.
The material before me does not indicate what treatment options are available, necessary or appropriate in relation to the lung condition. Dr Han’s report suggests the condition was not an issue during the assessment period; while the reports of Doctors Broom and Bambery are not as sanguine, they do not clearly address the condition or suggest treatment options (and they are not necessarily appropriate experts in any event). I do not think I could conclude the condition was fully treated and fully stabilised, but if I did it is unclear whether any impairment points would be assigned under any of the tables. I would add that, at the hearing, Mr Van-Oostveen gave evidence suggesting the condition is deteriorating. He said he had given up smoking but he regularly coughed up blood. It may be that his condition would be assessed differently if it were considered now.
That brings me back to the hepatitis C condition. I have already observed that condition should be assessed against descriptors in tables one and ten of the Determination. The applicant’s oral evidence suggests there is at least a possibility he might be allocated 20 points under table one during the review period. But that assessment should be undertaken by a job capacity assessor.
Does the applicant have a continuing inability to work?
Section 94(1)(c) of the Act requires that an individual experience a continuing inability to work. This requirement is comprised of several parts. One of them is an expectation that the applicant participate in a program of support for at least 18 months over the 36 month period before the claim. Mr Van-Oostveen has a problem with this requirement: he was in receipt of the DSP prior to 4 October 2013, so there was no reason for him to enrol in such a program, and he most likely would have been ineligible for assistance of that kind if he had sought it.
Mr Van-Oostveen would be excused from participating in the program of support if he were to be awarded 20 impairment points under table one, which I have already foreshadowed as a possibility. But I am satisfied there is also an open question over whether the applicant would be “prevented, solely because of his…impairment, from improving his…capacity to find, gain or remain in employment through continued participation in the program”: see s 5(5) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the POS Determination”). I make that point because the applicant reported that he was not only physically debilitated, but also presented with a ravaged appearance as a consequence of his hepatitis infection. He spoke of having lost all his finger nails and exhibiting other signs of the disease such that one is left to wonder whether a program of support would serve any useful purpose. Unfortunately, I am not able to express a concluded view on this point because the applicant did not appear at the hearing in person. He participated in the hearing by phone, and I was not provided with any photographs or independent statements describing his physical appearance. That evidence should be obtained so the question might be assessed.
I acknowledge there is a further requirement that must be satisfied even if the applicant is excused from participating in a program of support. I must also be satisfied the applicant was unable to work more than 15 hours per week with appropriate support. The Secretary says I should not be satisfied the applicant was disabled to that extent, but the submission was based on the assumption the applicant’s hepatitis C was not taken into consideration, and that the spinal condition only attracted 5 points (rather than 10, as I have found) under the relevant table.
Conclusion
The matter should be remitted to the Secretary for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth). The Secretary should commission a fresh job capacity assessment that considers the impact of the applicant’s hepatitis C condition under the relevant tables. The Secretary should also reconsider whether the applicant ought to be excused from participating in a program of support in any event pursuant to 5(5) of the POS Determination.
That task may take longer than 28 days to complete. The Secretary is at liberty to apply for an extension of time to complete the review if more time is required. The applicant may also consider lodging a fresh claim with up-to-date evidence; if he does so, it may be convenient to complete a review of that claim at the same time as the reconsideration – but that is a matter for the parties to consider.
25. I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 15 September 2015
Date of hearing 30 July 2015 Applicant Franciscus Van-Oostveen Respondent Secretary of the Department of Social Security
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