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

[2015] AATA 882

Wilson and Secretary, Department of Social Services (Social services second review) [2015] AATA 882 (17 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1174
Re	Terence Wilson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	17 November 2015
Place	Perth

The decision under review is affirmed.

...(Sgd) S. Webb.....................................................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY- Disability Support Pension - impairments – rating of impairments under the Impairment Tables – multiple conditions causing a common impairment – 20 point threshold not met – decision affirmed

LEGISLATION

Social Security Act 1991- s 94

Social Security (Administration) Act 1999- s 13 - s 41 - s 42 - Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011- s 6(3) - s 6(4) - s 6(5) - s 6(6) - s 10(5) - s 10(6)

Social Security (Active Participation for Disability Support Pension) Determination- s 7

REASONS FOR DECISION

Mr S. Webb, Member

17 November 2015

1. Terence Wilson suffers from a number of conditions that affect his ability to function. He claimed a Disability Support Pension (DSP). Centrelink determined to reject his claim. The decision has been reviewed at Mr Wilson’s request, and affirmed by successive decision makers. He has applied to this Tribunal for review of this decision.

   Issues

2. The issue to be decided is whether Mr Wilson’s claim for DSP can be granted. Grant of DSP is dependent upon each of the essential qualification criteria set out in s 94 of the Social Security Act 1991 (the Social Security Act) being satisfied. The key criteria that arise for consideration in this review are –

   94 Qualification for disability support pension

   (1) A person is qualified for disability support pension if:

   (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) one of the following applies:

   (i) the person has a continuing inability to work;

   …

   Start day and qualification period

3. On 27 March 2014 Mr Wilson first contacted Centrelink about lodging his DSP claim.[1] Centrelink issued a notice acknowledging this contact and his intention to claim DSP.[2] Mr Wilson ultimately lodged his DSP claim form on 11 April 2014, within 14 days of informing Centrelink that he intended to do so.[3]

   [1] T41 folio 260.

   [2] T29 folio 112.

   [3] T31.

4. In these circumstances, under s 13 of the Social Security (Administration) Act 1999 (the Administration Act), if Mr Wilson qualified for DSP on the date of his initial contact with Centrelink, he will be taken to have made his DSP claim on 27 March 2014.

5. If he did not qualify for DSP on that day or on the day he lodged the claim (11 April 2014), the ‘start day’ rules[4] make provision for a person to qualify within a period of 13 weeks thereafter – the claim is taken to be made on the day the person is qualified for DSP within that period.

   [4] Sections 41 and 42, and subclause 4 of Schedule 2 of the Administration Act.

6. This means, presently, that Mr Wilson must be found to qualify for DSP on either 27 March 2014 or 11 April 2014, or within the period of 13 weeks thereafter - on or before 11 July 2014. I will refer to the lodgement dates and the 13 week period as the qualification period for his claim.

   Physical, intellectual or psychiatric impairment

7. Mr Wilson noted in his DSP claim form that he has five disabilities, illnesses or injuries[5] –

   (a)emphysema,

   (b)COPD – Chronic Obstructive Pulmonary Disease,

   (c)arthritis,

   (d)ischaemic heart disease, and

   (e)two pneumothoraxes.

   [5] T31 folio 126.

8. The presence of each of these conditions on and before the date of Mr Wilson’s DSP claim is established by medical reports of the Armitage Road Medical Centre dated 8 April 2014,[6] and Dr Adesina, treating General Practitioner, dated 9 April 2014.[7] These reports are supported by medical certificates issued by Dr Adesina on 4 February 2014 and 23 October 2013.[8] On these materials, I am satisfied that these conditions cause (or are themselves) impairments for the purposes of s 94(1)(a) of the Social Security Act.

   [6] T30 folio 113.

   [7] T32 folios 142-152.

   [8] T3 folios 20 and 21.

   Rating of 20 points or more under the Impairment Tables

9. The second criterion is that Mr Wilson’s impairments must attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

10. The Determination sets out rules that must be applied when assessing impairments and the conditions that cause them. Impairments must be assessed with reference to the qualification period.

11. Rule 6(3) provides that an impairment rating may only be given for conditions that are ‘permanent’ where the impairment is more likely than not to persist for more than two years. Under rule 6(4) a condition is taken to be permanent only if the condition has been –

    (f)fully diagnosed (by an ‘appropriately qualified medical practitioner’, being a medical practitioner with qualifications and practice relevant to diagnosing a particular condition);

    (g)fully treated (rule 6(5) applies);

    (h)fully stabilised (rule 6(6) applies); and

    (i)it is likely to persist for more than two years.

12. Rules 10(5) and (6) provide that –

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.

    Emphysema, Chronic Obstructive Pulmonary Disease and Pneumothoraxes

13. It is appropriate to deal with these conditions together. The medical evidence clearly establishes that these conditions are ‘permanent’ (each is well documented in the medical reports and certificates in evidence[9]) and that they have a common or combined effect on Mr Wilson’s ability to function – each causes breathing difficulty and difficulties with endurance or stamina. I accept Dr Adesina’s report of 9 April 2014 that these effects are likely to persist for more than two years and that “Because of his shortness of breath, endurance, exercise, lifting, mobility is moderately affected”.[10]

    [9] See T3 folios 10-22, T7, T12 and T24, for example.

    [10] T32 folio 147.

14. The reports of Dr Adesina suggest that Mr Wilson quickly becomes exhausted with physical activity.[11] On 25 September 2013, Dr Rogers reported “Mr Wilson tells me that he struggles to walk 30 metres on the flat and would not be able to make it up a single flight of stairs without stopping”.[12] On 4 February 2014, Dr Adesina certified that Mr Wilson was not capable of undertaking his usual work (as a boilermaker or rigger) but he could then do other work for eight or more hours per week.[13]

    [11] See T11 folio 48, T32 folio 147 and Exhibit 1, report by Dr Adesina dated 3 July 2015, for example.

    [12] T24 folio 124.

    [13] T3 folio 21.

15. Weighing the evidence, I think the correct assessment is that Mr Wilson’s breathing impairment has a moderate effect on his ability to function, and it should be assigned a rating of 10 points under Table 1.

    Arthritis

16. Even though there is no specialist or radiological evidence in respect of this condition, I accept Dr Adesina’s 9 April 2014 and earlier reports that Mr Wilson suffers from osteoarthritis affecting his back, probably at the L2/L3 level of his lumbar spine, and his knees. I note that Dr Adesina’s diagnosis was made on the basis of “clinical examination impression only”.[14]

    [14] T16 folio 70.

17. The Secretary argues that this condition is not ‘permanent’ for the purposes of the Determination. As I understand the Secretary’s submission, this is because the condition has not been assessed or treated by a medical specialist, and other treatments, such as hydrotherapy and exercise, could be expected to reduce the functional effect of the condition within two years. I was informed at the hearing that this submission proceeds on the basis of a document referred to in paragraph 58 of the Statement of Facts, Issues and Contentions of the Respondent, prepared for the Secretary in these proceedings.

18. The document was not attached to the Secretary’s Statement and it was not provided to Mr Wilson or the Tribunal at or before the hearing. I was informed at the hearing that the document on which the Secretary relies is information about treatment options for arthritis on the Arthritis Australia website, and that it would be printed from the Internet and given to the Tribunal and to Mr Wilson.

19. There are a number of things to say about this. Firstly, for the Secretary to raise fresh treatment options by reference to material that has not been given to the Tribunal or to the applicant prior to a hearing is unhelpful. At a minimum, this may give rise to issues of procedural fairness at the hearing (as occurred in this case). Secondly, for this to be done in closing submissions at the hearing is concerning. The treatment options referred to in submissions (and in a written contention toward the end of a Statement of Facts, Issues and Contentions document) were not squarely put to Mr Wilson or to his treating doctor. Thirdly, the proposition that those representing the Secretary consider it appropriate to rely on general information published on a website on the Internet over the evidence of a medical doctor exercising clinical judgement in the treatment of a long-term patient is without a firm basis or relevant evidentiary support in this case.

20. Of course, the relative weight given to particular evidence is a matter for determination. Nonetheless, failing to provide the material on which the Secretary intends to rely prior to a hearing underscores the fairness issue and it adds to the concern that Mr Wilson was not provided with an adequate opportunity to respond to the materials prior to or during the hearing. In this case it has caused a delay and, in all likelihood, additional costs.

21. Rather than refusing to allow the fresh material, I remedied the fairness issue by making orders setting a timetable for the additional materials and any related submissions to be filed by the parties. This allowed time for Mr Wilson to consider and respond to new materials and submissions filed on behalf of the Secretary.

22. The Secretary filed two documents from Arthritis Australia: a four page brochure “Joint Action – Take Control” (the Arthritis Brochure), dealing with exercise and hydrotherapy; and a 38 page booklet “10 steps for living well with arthritis” (the Arthritis Booklet). Both parties filed written submissions.

23. I have considered the additional materials filed by the parties and placed the material from Arthritis Australia in Exhibit 2.

24. The materials from Arthritis Australia are in the nature of general advice – for example, “Usually people with arthritis in several joints find most benefit from hydrotherapy”[15] and “step two DON’T DELAY, SEE YOUR DOCTOR”.[16]

    [15] ‘Joint Action – Take Control’, page 2.

    [16] ‘10 steps for living well with arthritis’, page 9.

25. The Arthritis Booklet states that hydrotherapy may not be suitable treatment in the context of certain medical conditions  –

    “When is hydrotherapy not appropriate?

    With certain medical conditions hydrotherapy may not be suitable. These include:

    -    …

    -    angina/heart problems

    -    ...

    -    chest infections.”

26. Mr Wilson suffers from ischaemic heart disease and from chronic lung disease. In these circumstances, on the advice set out in the Arthritis Brochure, it would appear that hydrotherapy may not be suitable treatment for Mr Wilson’s arthritis. This point, however, is not addressed by the Secretary in submissions.

27. The Arthritis Booklet provides the following caution – “Not all information you read or hear is trustworthy so always talk to your doctor or healthcare team about treatments you are thinking about trying”.[17] On this advice, it is quite clear that treatment for arthritis should be under the supervising care of a treating doctor. This is precisely what Mr Wilson has done.

    [17] ‘10 steps for living well with arthritis’, page 35.

28. To my mind, the materials from Arthritis Australia do not shed any further light on the kinds of treatment that may be reasonable for Mr Wilson’s arthritis in the particular circumstances. The treatment options set out in the Arthritis Australia materials are no more than possibilities, in the broad.

29. Whether or not any specific treatment is reasonable in a particular case will depend upon a proper assessment by a treating practitioner, considering the medical history of the person and exercising clinical judgement.

30. Dr Adesina is an appropriately qualified doctor who has been treating Mr Wilson since 2009. The doctor has exercised clinical judgement in Mr Wilson’s case and prescribed ongoing pharmacological treatment for Mr Wilson’s arthritis over a number of years.[18]  Dr Adesina’s diagnosis was made on his clinical examination of Mr Wilson, without radiological investigations. The present evidence does not establish that radiological investigations are required to properly diagnose arthritis in Mr Wilson’s back and in his knees. I accept Dr Adesina’s diagnosis and I am satisfied that it was properly made.

    [18] See T14 folio 47 and Exhibit 1, report of Dr Adesina dated 3 July 2015, for example.

31. Even though Dr Adesina was not called to give oral evidence, it is quite clear that he has full knowledge of Mr Wilson’s medical health and his various medical conditions. It is also quite clear that Mr Wilson’s lung conditions are very significant in his medical presentation and these conditions directly affect his capability to undertake physical activities of various kinds. It may be assumed that Dr Adesina considered treatment options for Mr Wilson’s arthritis condition in the context of his overall health. The treatment he prescribed for Mr Wilson’s arthritis is confined to analgesic and anti-inflammatory medications. Why he did not recommend hydrotherapy, exercise or other kinds of possible treatment is not established by direct evidence, although it may be inferred, as Mr Wilson argues and as the Arthritis Brochure suggests, that his lung and heart conditions may have weighed against these kinds of treatment in the particular circumstances.

32. For these reason, I give more weight to the treatment recommendations of Dr Adesina than to the general description of treatment options set out in the Arthritis Australia materials in Exhibit 2. The materials on which the Secretary belatedly sought to rely suggest that hydrotherapy may not be suitable treatment for Mr Wilson’s arthritis in the particular circumstances. I am satisfied that hydrotherapy is not reasonable medical treatment for Mr Wilson’s arthritis condition that is likely to result in a substantial improvement of his functional capacity.

33. It appears that in or about 21 November 2013 a pulmonary rehabilitation program involving exercise to improve Mr Wilson’s functional capacity was considered reasonable in the context of his lung and heart disease.[19] Ms Bostock, a senior physiotherapist, reported that Mr Wilson “did not think attending PR [pulmonary rehabilitation] would work for him as he is already quite active at home”. Whether or not that is correct, the present evidence does not establish on the balance of probabilities as opposed to mere possibility that exercise is reasonable treatment for Mr Wilson’s arthritis condition that is likely to result in substantial improvement of his functional capacity.

    [19] T27 folio 107.

34. It is not presently established that hydrotherapy or exercise is ‘reasonable treatment’ that would be likely to reduce the impairments resulting from Mr Wilson’s arthritis such that a significant functional improvement might result in him being able to undertake work within two years.

35. Raising the spectre of possible treatment options that may exist at large, but which have not been recommended by an appropriately qualified medical practitioner and have not been undertaken in the specific case, is one thing; establishing that a particular treatment is reasonable treatment in the specific case for the purposes of rules 6(4) to 6(7) is entirely another.

36. To my mind, Mr Wilson’s back and knee arthritis are appropriately considered to be ‘permanent’ for the purposes of Rule 6(3) of the Determination. I am satisfied that this condition has been fully diagnosed, fully treated and fully stabilised, and the impairments to Mr Wilson’s mobility and endurance are likely to persist for more than two years.

37. This means that Mr Wilson’s arthritis impairment must be assessed under the relevant Impairment Tables.

38. Dr Adesina reported that Mr Wilson’s arthritis symptoms are “spinal pain / knee pain Backpain, daily, moderate. Does not use special aids” and that these “Affect mobility and endurance moderately”, although this is expected to fluctuate within two years.[20]

    [20] T32 folio 150.

39. Thus, there are two functional aspects to his arthritis impairment – pain in his knees affecting his mobility and endurance and pain in his lower back affecting his mobility and endurance. Following Rule 6(9), each of the knee and back impairments resulting from arthritic pain must be assessed under the Table relevant to the area of function affected. This means that Mr Wilson’s knee impairment must be assessed under Table 3 – Lower Limb Function, and his lower back impairment must be assessed under Table 4 – Spinal Function.

40. Unfortunately, there is very little evidence about the detail and extent of the functional impact of Mr Wilson’s arthritis on activities using his lower limbs, or in respect of activities involving his spinal function. Dr Adesina reported a moderate effect on Mr Wilson’s mobility and endurance, but precisely what this means is not clear.

41. On 26 February 2014, a Job Capacity Assessor (Charmaine – a registered nurse) reported –

    Mr Wilson advised of the following tolerances – Can walk 50 m, can stand for 30 minutes, can sit for 30 minutes, can bend to the floor and pick up 2 kg, can attend [sic – ascend] x 1 flight of stairs.[21]

    [21] T28 folio 109.

42. On this evidence, and in view of Dr Adesina’s report that the impact of Mr Wilson’s arthritis condition was expected to fluctuate, I am not persuaded that it is appropriate to assign a rating of 10 points at the moderate level of impact under Table 3 or under Table 4.

43. I think it can be accepted that Mr Wilson has some difficulties walking and climbing stairs and that there is a mild functional impact on activities using his lower limbs for the purposes of Table 3. Considering the scale set out in the Table and the criteria (which are not seamless) attaching to the 0, 5, 10 and 20 point levels, I am satisfied that a rating of 5 points under this Table may be appropriate.

44. Under Table 4, a rating of 0 points is appropriate. Doing the best with the present evidence, I am satisfied that Mr Wilson met each of the criteria at the 0 point level under Table 4 and he does not meet the criteria at the 5 or 10 point levels. There is but little evidence to go on, and the available materials do not establish that Mr Wilson has difficulty turning his trunk from side to side, or turning his head to look sideways or upward. I accept that Mr Wilson experiences pain in his lower back that affects his mobility and his endurance, but this does not mean he has some difficulty turning his trunk – that is not made out.

1. It follows that it is appropriate to assign a rating of 5 points under Table 3 and 0 points under Table 4 in respect of Mr Wilson’s arthritis impairments.

   Ischaemic heart disease

2. The medical evidence of ischaemic heart disease is somewhat ambiguous. Dr Liu, a cardiologist, reported –

   On 29 October 2012:

   “In summary, [Mr Wilson] has moderate coronary artery disease involving left circumflex artery and small first diagonal artery. None of these lesions are sufficiently severe to cause rest pain. I suspect that his exercise intolerance is more related to COPD than it is to coronary artery disease”.[22]

   On 27 June 2013:

   “In summary, [Mr Wilson] continues to suffer somewhat atypical chest pain. He does not have severe obstructive coronary artery disease to cause angina. I wonder whether his pain may actually be related to his COPD.

   He clearly also has had worsening COPD. This is exacerbated by his smoking.” [23]

   [22] T17 folio 72.

   [23] T23 folio 101.

3. On 25 September 2013, Dr Rogers, a respiratory registrar, reported that –

   “Mr Wilson has progressive exertional dyspnoea and left sharp non-pleuritic chest pain for many months. He has seen Dr Andrew Liu who arrange angiography following positive stress test (positive due to chest pain). … Angiography on the 19^th September 2012 demonstrated normal left main and normal principal LAD with moderate diffuse disease first diagonal proximally, 50% stenosis at the origin of the left circumflex and normal RCA. Dr Liu comments that these angiographic abnormalities are insufficient to explain his pain or decrease in exercise tolerance.

   Mr Wilson tells me that he struggles to walk 30 metres on the flat and would not be able to make it up a single flight of stairs without stopping.

4. On 15 October 2013 a high resolution CT scan of Mr Wilson’s chest was performed. This was reported to demonstrate “Moderate to severe centrilobular emphysema and increased bullae formation particularly in the anterior upper lobes” – “The severity of the diffuse centrilobular emphysema has significantly increased since the previous study”.[24]

   [24] T25 folio 105.

5. This assessment may explain Dr Adesina’s report on 9 April 2014 that Mr Wilson’s ischaemic heart disease had a minimal or limited impact on his ability to function.[25] I accept that conclusion and so find.

   [25] T32 folio 151.

6. The impact of this condition, albeit minimal, on Mr Wilson’s exercise tolerance, or on his ability to perform activities requiring physical exertion or stamina is appropriately assessed within the rating I have assigned under Table 1 in respect of his lung impairments. It is not appropriate to assign a further rating under that Table.

   Impairment points

7. I sum, Mr Wilson’s conditions and impairments attract a rating of 10 points under Table 1, 5 points under Table 3 and 0 points under Table 4. It follows that his impairments are consistent with 15 points the Impairment Tables.

8. It follows that the second essential requirement to qualify for grant of DSP under s 94(1)(b) of the Social Security Act is not satisfied.

9. For this reason Mr Wilson’s DSP claim cannot be granted.

   Continuing inability to work

10. That being so, it is not strictly necessary to address issues under s 94(1)(c) of the Social Security Act – whether Mr Wilson has a continuing inability to work and whether he satisfies the participation in a program of support requirements.

11. After the hearing, I was provided with additional information by the Secretary addressing Mr Wilson’s participation programs of support.

12. It appears that Mr Wilson participated in programs of support for 762 days in the period from 11 April 2011 to 11 April 2014. This means that he satisfies the participation requirement under s 7 of the Social Security (Active Participation for Disability Support Pension) Determination and s 94(2) and (3C) of the Social Security Act. On the present materials, it is probable that Mr Wilson has a continuing inability to work and satisfies the test under s 94(1)(c).

    CONCLUSION

13. But this does not change the outcome. Mr Wilson does not meet the threshold requirement under s 94(1)(b).

14. It follows that he is not qualified for DSP during the qualification period.

15. There is no bar on him lodging a fresh claim for DSP if his conditions deteriorate and have a greater effect on his ability to function.

16. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

....(Sgd) A Tran....................................................................

Administrative Assistant

Dated 17 November 2015

Date of hearing	23 October 2015
Applicant	In person
Representative for the Respondent	Ms M de Reus
Solicitors for the Respondent	Australian Government Solicitor