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

[2017] AATA 47

Williams and Secretary, Department of Social Services (Social services second review) [2017] AATA 47 (24 January 2017)

Division	GENERAL DIVISION
File Number	2016/4622
Re	Jodie Williams
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	24 January 2017
Place	Hobart

The decision of the Social Services and Child Support Division of the Tribunal dated 25 August 2016 is set aside and, in substitution therefor, the Tribunal decides that the Applicant was qualified for Disability Support Pension on 17 May 2016.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully treated and fully stabilised – application of Determination where reasonable treatment not undertaken but significant functional improvement not expected in 2 years – 2005 transitional provisions relevant – decision set aside – applicant qualified for DSP

LEGISLATION

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, Schedule 2, Part 1, s 13

Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)

SECONDARY MATERIALS

Black’s Medical Dictionary, 42^nd Edition; London; A. & C. Black (2010)

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, rules 5, 6, 11

CASES

Armao and Secretary, Department of Social Services [2015] AATA 146

Booth and Secretary, Department of Social Services [2016] AATA 1000

Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558

Fidanza and Secretary, Department of Social Services [2015] AATA 150

Fuller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 883

Holt and Secretary, Department of Social Services [2016] AATA 633

Markus and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 306

REASONS FOR DECISION

D. J. Morris, Member

24 January 2017

BACKGROUND

1. Mrs Jodie Williams seeks a review of the decision to cancel her Disability Support Pension (DSP) on 17 May 2016. 

2. The hearing was held on 5 January 2017.  The Applicant represented herself.  The Respondent was represented by Mr Brian Sparkes.  The Applicant gave evidence under affirmation by telephone and was cross-examined by counsel for the Respondent.

3. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.

4. The Applicant submitted the following documents, which were admitted into evidence:

   ·Medical certificate No 1 from Dr Miguelito Mercado, general practitioner, dated 30 August 2016 (Exhibit A1.1)

   ·Medical certificate No 2 from Dr Miguelito Mercado, general practitioner, also dated 30 August 2016 (Exhibit A1.2)

   FACTS

5. The Applicant was granted DSP in 1997 on the basis of a musculoskeletal impairment.  Eligibility for DSP is periodically reviewed by the Department of Social Services (the Department) and the Department decided to review Mrs Williams’ qualifications for this benefit.

6. In 2011 the Minister made a legislative instrument, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012.  It replaces the old tools of assessment used in the assessment of the Applicant and sets out the rules for assessing impairments for persons applying for DSP, and for medical reviews of persons who are in receipt of DSP.

7. The Department provided the Applicant with a Medical Report Disability Support Pension Review form to be completed by her doctor.

8. In accordance with the Department’s request, Mrs Williams obtained a medical report from her general practitioner, Dr Mercado.  This medical report is dated 10 March 2016. Mrs Williams gave evidence to the Tribunal that she left the report form at Dr Mercado’s rooms and he filled it out and then she collected it and despatched it to the Department.  She did not see him on this occasion.  Dr Mercado records the condition with the most impact on Mrs Williams as: ‘Right forearm unresolved pain, unresolved tendonitis,’ and that this diagnosis was confirmed by Dr Graeme Jones, rheumatologist.  Dr Mercado also listed two other conditions which he listed under the section of the report for conditions that “are generally well managed and cause minimal or limited impact on ability to function”: Emphysema and a gynaecological condition.

9. Mrs Williams underwent a face to face Job Capacity Assessment (JCA) on 10 May 2016.

10. The Department of Social Services (the Department) reviewed and cancelled Mrs Williams’ DSP on 17 May 2016 on the basis that she was no longer medically qualified.

11. Mrs Williams requested a review of this original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  The ARO considered the decision and on 7 June 2016 affirmed it.

12. Mrs Williams sought a review by the Social Services and Child Support Division of the Tribunal (AAT1).  This took place on 25 August 2016.  AAT1 affirmed the original decision.

13. Mrs Williams then sought a review of the original decision by the General Division of the Tribunal.  That is this hearing.

14. The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date of cancellation, 17 May 2016. Was that decision the correct decision?

    Qualification for DSP under the Act

15. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person has:

    (a)a physical, intellectual or psychiatric impairment;

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

16. In respect of a ‘continuing inability to work’, if a person is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act – that is, if the person is not assigned 20 or more points under a single Impairment Table – then, in the normal course, the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.

17. However, when the law was changed in relation to a continuing inability to work by the  Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, transitional provisions were included in Schedule 2, Part 1, section 13 so that, in the words of the explanatory memorandum tabled by the Minister which accompanied the Bill:

    “People who were receiving disability support pension on 10 May 2005 will not be affected by the changes to disability support pension qualification.”

18. The Department record show that Mrs Williams first qualified for DSP on 29 May 1997 and so the transitional provisions in the 2005 amendments to section 94 of the Act apply to her.

19. Accordingly, the Respondent submitted that, if the Tribunal finds that the Applicant is correctly assigned 20 (or more) points under more than one of the Impairment Tables, the Secretary would concede that the qualification for DSP is met.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

20. As mentioned above, the Tribunal had before it Dr Mercado’s medical report dated 3 March 2016.  This report identifies three medical conditions as applicable to Mrs Williams as at the date of the cancellation of her DSP – an upper limb condition, emphysema and a gynaecological condition.  In addition, the JCA recorded that Mrs Williams had told the assessor that she had recently been diagnosed with depression by Dr Mercado, had been prescribed medication and had been referred to a psychologist. 

21. The Tribunal is unable to consider the depression condition as the only evidence of it is self-reporting.  That is not to say that I doubt what Mrs Williams told the JCA, but the Determination requires at Rule 8(1) that symptoms reported by a person in relation to a condition can only be taken into account when there is corroborating evidence.  Dr Mercado does not mention depression in his medical report and, even if he had, Table 5 – Mental Health Function requires that there needs also to be a corroborating diagnosis from an ‘appropriately qualified’ medical practitioner such as a psychiatrist or, if not, evidence from a clinical psychologist.  There is no such diagnosis in this case.

22. The Respondent accepted that Mrs Williams had impairments for the purposes of section 94(1)(a) of the Act at the date the Department cancelled her DSP.

23. On the basis of the medical evidence before me, I find that Mrs Williams did meet the requirements of section 94(1)(a) at the date of cancellation. She did have impairments, namely an upper limb condition, emphysema and a gynaecological condition.

    What is the correct rating under the Impairment Tables?

24. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, Rule 5(2)).

25. Rule 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

26. Rule 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

27. Under Rule 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

28. Rule 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

29. The Impairment Tables Rules also provide, at Rule 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

30. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    Upper limb condition

31. The JCA recommended that Mrs Williams’ shoulder and upper arm disorder should be regarded as fully diagnosed, fully treated and fully stabilised.  It is recorded by Dr Mercado as the condition with the most impact and he states that the diagnosis was confirmed by Dr Graeme Jones.  Dr Mercado records that Mrs Williams is taking prescribed medication and that in his opinion the condition is likely to persist for more than 24 months.  Mrs Williams’ own evidence to the JCA was that she had had the condition since 1996 and wore an elbow and wrist brace when the pain was ‘bad’.

32. The JCA concluded that, in the assessor’s opinion, there is a moderate functional impact on Mrs Williams’ daily life.  Dr Mercado says the Applicant has limited use of her right hand.  Mrs Williams in her own evidence under cross-examination told the Tribunal about difficulties she experiences with household tasks.  She cannot vacuum, clean the bathroom nor do gardening such as mowing the lawn.  A neighbour visits each morning and makes her bed.  The neighbour also mows the lawn, cleans the house and goes to the local shopping centre to buy groceries for the Applicant. 

33. The Respondent contended that, if the Tribunal finds that this condition is fully diagnosed, fully treated and fully stabilised, an assignment of 10 impairment points for this condition was correct.

34. The correct table to assess arm impairment is Table 2 – Upper Limb Function.  On examining the Descriptors in the Determination for this Table and applying them to the medical evidence, what Mrs Williams told the JCA, and the evidence she gave at this hearing, this condition has a moderate impact on her functional abilities and the Tribunal finds it should be correctly allocated 10 impairment points.  As the condition affects only one hand, the Descriptors in this table for a 20 impairment point rating are not met.

    Gynaecological condition

35. Dr Mercado recorded two gynaecological conditions of the Applicant.  The correct impairment table to assess such conditions is Table 10 – Digestive and Reproductive Function.  Mrs Williams told the JCA that she had had surgery in 2015 and, since that time, she does not have any pain symptoms.

36. On the basis of this evidence, the Tribunal finds that this condition is fully diagnosed, fully treated and fully stabilised but as it causes minimal impact on Mrs Williams, the provisions of Rule 11(5) of the Determination are applicable, and I find that zero impairment points must be assigned for this condition.

    Emphysema/COPD condition

37. The JCA of 10 May 2016 recommended that Mrs Williams’ emphysema be considered fully diagnosed and fully treated.  It is recorded by Dr Mercado in his medical report as “early emphysema”.  The JCA considered on the medical reports that the condition is likely to persist for more than 24 months and is actively treated.

38. The JCA recommended that the condition not be regarded as fully stabilised because Mrs Williams was smoking at the time of assessment. The JCA states that Mrs Williams’ emphysema condition is noted to be chronic but “is expected to improve with cessation of smoking,” but does not provide any corroborating evidence to support this assertion.  Emphysema (or COPD) is a progressive condition without a cure.  In the Tribunal’s knowledge, ceasing smoking is always recommended because it slows the progression of the condition, but if there is damage to the lungs, then that cannot be reversed. 

39. The Tribunal appreciates the pressure under which Job Capacity Assessors operate and that often they are evaluating conditions outside their own areas of particular expertise.   Deputy President Forgie discussed how a JCA report should be considered in detail in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558. After sounding a cautionary note that JCA Reports are summaries and analyses used by the Secretary or his delegate in making decisions, she said at paragraph [61]:

    There is a further danger and it arises if the opinions expressed in JCA Reports are necessarily treated as evidence … it arises when opinions expressed by JCA Assessors on medical issues are treated as evidence of the sort found in reports of treating medical practitioners and those of allied health professionals and specialists reporting on a patient in areas of their expertise.

40. With respect, I agree with Deputy President Forgie.  JCA reports are important, especially when they are conducted face to face, because the Assessors have familiarity with the Act and the Determination and with assessing functional capacity, but sight must not be lost that the JCA report is one of the several pieces of information that the decision-maker must consider and that where a treating medical practitioner (especially one with a history of treating a person) has a different professional opinion, that opinion must be given more weight than an opinion contained in a JCA recommendation, unless there is manifestly no basis for the doctor’s opinion on the facts.   Here, Mrs Williams’ own comments about the effects on her stamina reported in the JCA appear to be at odds with the bald conclusion that her emphysema had minimal impact.  That might have led to further inquiries of her treating doctor for clarification.

41. Dr Mercado in a medical certificate dated 2 September 2016 cited a slightly different diagnosis of COPD (Chronic Obstructive Pulmonary Disease), said that the symptoms were shortness of breath and decreased exercise tolerance and that Mrs Williams was on prescribed medication.  The Tribunal notes that Black’s Medical Dictionary (42nd Edition, 2010) describes COPD as an “umbrella heading” for a group of lung disorders including pulmonary emphysema.

42. Although the JCA reports that Mrs Williams ‘confirmed’ the condition has minimal impact on function, this merely echoes the wording in the relevant heading to the medical report and is different from what Mrs Williams told AAT1 and this hearing.  In that evidence she said this condition causes her significant disability and gave evidence about her difficulty in getting around.  Mrs Williams said she could not walk around to the local shop but she could, with difficulty, walk to her own gate to close it.  She no longer cooks and her neighbour kindly brings an evening meal in to her, already prepared.  Her daughter, who no longer lives with her, formerly did many of these tasks, but the neighbour has now stepped in.  When asked about going to shopping centres she said that she could not walk around and a neighbour usually bought the items she needs.  She told the Tribunal that she had had an episode at the nearest shopping centre where she had to be assisted owing to breathlessness.

43. Mrs Williams provided to the Tribunal two medical certificates from Dr Mercado.  In her application for review she said that Dr Mercado had erred in putting her emphysema condition in his March 2016 report in the section for conditions with ‘minimal functional impact’ and he subsequently provided to her two medical certificates dated 30 August 2016 which emphatically corrected that.  It was not clear to the Tribunal why there were two certificates of the same date with slightly differing (but effectively consistent) wording and Mrs Williams was unable to shed any light in her evidence.  She said she already had the certificate from him, and she was given the second certificate when she attended Dr Mercado’s surgery to pick up a prescription for nicotine patches.  While the Tribunal did not have the advantage of questioning Dr Mercado directly, it would seem a correct conclusion to draw that he did err in where he listed Mrs Williams’ emphysema on the form, given his subsequent, unambiguous, professional opinion.

44. The 30 August 2016 certificate (exhibit A1.2) says, relevantly:

    ‘Ms Williams suffers from chronic lung disease.  She has severely decreased pulmonary capacity.  Her walking distance is also very limited.  Jodie is not able to complete doing even simple household chores and has to be assisted by a neighbour.  Prognosis is poor and she is not expected to show any significant improvement.’

45. In submissions, the Respondent did not particularly cavil with Dr Mercado’s assessment.  It is consistent with the observations of the JCA and with the evidence of the Applicant about the functional effects of this established condition (from which the Applicant has suffered since well before May 2016), but differs with the JCA in regard to the JCA’s view that there will be improvement if Mrs Williams ceases smoking.

46. However, the Respondent submitted that the Tribunal should not regard the emphysema condition as fully treated and stabilised, because at the time of the cancellation Mrs Williams was still smoking.

1. The Tribunal queried whether the Secretary contended that ‘treatment’ extended to a case where a person was smoking but in the course of giving it up.  The Tribunal notes Mrs Williams’ evidence that Dr Mercado had consistently told her to give up smoking because of her emphysema and that she has since given up and has been prescribed nicotine patches.

2. The Respondent submitted that the Tribunal can be informed by other decisions of the Tribunal in terms of consistency of the application of policy, but correctly noted that the Tribunal is not bound by them.  This is axiomatic, because my task is to assess whether the correct decision was made on the merits of the case before me.  I gave the Respondent the opportunity to make further submissions on this particular point, which he has done. 

3. In Holt and Secretary, Department of Social Services [2016] AATA 633, the Applicant, Mrs Holt, had a confirmed diagnosis of emphysema and was continuing to smoke and had been referred to a pulmonary rehabilitation program. This case is distinguishable from Mrs Williams’ circumstances in that, in Mrs Holt’s Job Capacity Assessment, the JCA reported difficulty in isolating functional impairment of her breathlessness owing to other conditions. She also had planned treatment with CPAP, referral to specialists and a regular spirometer. The facts are different in this case.

4. In Booth and Secretary, Department of Social Services [2016] AATA 1000, the Applicant had declined to use an inhaler recommended to him by his respiratory physician and, having ceased smoking, had taken it up again. Deputy President McDermott decided that he was unable to find that Mr Booth’s CORD condition was fully treated when he had declined reasonable treatment. Again this is distinguishable from Mrs Williams’ case. There is no evidence that she had declined reasonable treatment such as refusing to take medication.

5. Similarly, in Fidanza and Secretary, Department of Social Services [2015] AATA 150, the Applicant claimed that another condition, anxiety, prevented her from ceasing smoking. Member Denovan found that Ms Fidanza had not complied with reasonable treatment for her mental health condition and a consequence was that she had not stopped smoking. She had a 40 cigarette a day addiction.

6. In Armao and Secretary, Department of Social Services [2015] AATA 146, one of Mrs Armao’s conditions was recurrent bronchitis, which may not necessarily be a chronic and incurable condition, unlike emphysema, which the Tribunal is aware it can progress to.

7. The Respondent also drew the Tribunal’s attention to Markus and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 306. In that case, Mr Markus was awaiting a thyroidectomy at the time the Tribunal was considering his application and, while his smoking was mentioned, it was on the basis that the Applicant’s condition was not fully treated owing to pending surgery that Member Alexander decided he could not assign impairment points.

8. Fuller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 883 was possibly the most relevant set of similar facts to Mrs Williams’ situation. In that case Senior Member Bean (as she then was) decided that Ms Fuller’s COAD condition could not be regarded as fully treated and fully stabilised because her doctor gave evidence that he had consistently told her that the most effective treatment for her would be to give up smoking, and that she had not. Mrs Williams’ doctor did not give oral evidence at this hearing.

9. It is certainly relevant that Mrs Williams was in the process of quitting smoking when her DSP was cancelled.  But in carefully considering whether her emphysema condition was fully stabilised, I must take all the relevant information before me into account referrable to the relevant period.

10. The prognosis in Dr Mercado’s written opinion is poor.  If I accept the Respondent’s contention that ‘treatment’ includes giving up smoking in the context of this condition being regarded as ‘fully stabilised’, I am compelled to do so with reference to Rule 6(6) of the Determination.

11. Under Rule 6(6)(b)(i) a condition is fully stabilised if a person has not undertaken reasonable treatment and 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.

12. I am persuaded that this is the case in assessing Mrs Williams’ emphysema/COPD condition.  It was fully diagnosed and fully treated at the time of cancellation, which was the conclusion of the JCA and not contested by the Respondent.  She was being compliant with all the medical advice including moving to cease smoking at the time of cancellation.  The JCA’s opinion that the condition is “expected to improve” is simply an assertion.  Significant functional improvement is factually not expected to result within the next 2 years.  The fact that the emphysema condition is now evidently on a deteriorating trajectory does not change that conclusion, and indeed supports my finding in relation to no likely functional improvement within 2 years from the time of cancellation.  I do not take into account in making this finding that Mrs Williams has ceased smoking and is on prescription nicotine patches, but this is a relevant point to mention, in the context of her compliance with treatment.

13. Having concluded that the emphysema condition is capable of assessment, the correct Impairment Table to consider such a condition (whether labelled emphysema or COPD, both of which terms are used in relation to the Applicant’s condition by Dr Mercado) is Table 1 – Functions Requiring Physical Exertion and Stamina. 

14. I conclude, on the medical evidence of Dr Mercado, what Mrs Williams told the JCA and her evidence to AAT1 and under cross-examination about the functional effect on her of this condition in relation to work capacity, that the Descriptors are not met for a severe functional impact under this Table, but they are met for a moderate functional impact.  Mrs Williams is able to perform certain limited tasks not requiring a high level of physical exertion but otherwise cannot walk far outside the home, and has significant difficulty in performing day to day household activities.  Although some of this evidence of functional effect is self-reporting (as evidence about household chores before the Tribunal often is), I am persuaded it was genuine and that it is sufficiently corroborated by, and consistent with, the other available medical evidence.

15. I therefore find that the Applicant should be assigned 10 impairment points under Table 1.

    Conclusion

16. I have found that Mrs Williams should correctly be assigned a total of 20 impairment points as at the date of cancellation, 10 points under Table 1 and 10 points under Table 2.

17. I have therefore found that she satisfied section 94(b) of the Act.  As I have made this finding, taking into account the applicable transitional provisions for persons with DSP prior to 10 May 2005, the consequence is that Mrs Williams does fulfil the necessary qualifications under section 94 of the Act for DSP.

    DECISION

18. The decision of the Social Services and Child Support Division of the Tribunal dated 25 August 2016 is set aside and, in substitution therefor, the Tribunal decides that the Applicant was qualified for DSP on 17 May 2016.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, member

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Associate

Dated: 24 January 2017

Date(s) of hearing:	5 January 2017
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes