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

[2017] AATA 1021

Wos and Secretary, Department of Social Services (Social services second review) [2017] AATA 1021 (24 May 2017)

Division:GENERAL DIVISION

File Number:           2016/3844

Re:Tadeusz Wos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P Britten-Jones

Date:24 May 2017

Date of written reasons:        4 July 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review

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Senior Member P Britten-Jones

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – CANCELLATION of Applicant’s pension – whether Applicant had condition(s) that were fully diagnosed, treated and stabilised at time of cancellation – whether Applicant’s impairments could be rated 20 points or more under the Impairment Tables  – Applicant did not meet criteria under s 94 – decision to Cancel DSP correct - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member P Britten-Jones

4 July 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones

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Administrative Assistant

Dated: 4 July 2017

Date(s) of hearing:	24 May 2017
Applicant:	In person
Advocate for the Respondent:	Ms J Edwards
Solicitors for the Respondent:	Dept of Human Services

EXTRACT OF TRANSCRIPT PROCEEDINGS

SENIOR MEMBER:  Be seated, thank you.  As I indicated I will now read out my reasons for my decision and I will give you my decision at the end of those reasons, Mr Wos.

The applicant was granted a Disability Support Pension from 6 March 2008.  A review of his entitlement was conducted and as part of that review Dr Le Cong prepared a report dated 26 December 2015.  Dr Le Cong had been seeing Mr Wos for at least 10 years.  The applicant was then assessed by a Job Capacity Assessment officer as part of the review in a face to face interview on 20 January 2016.  After that the applicant’s Disability Support Pension was cancelled on 1 March 2016. 

Reviews to an authorised review officer and to the AAT 1 were unsuccessful.  On 22 July 2016 the applicant lodged his request for a review of the AAT 1 decision.  The issue for the Tribunal is to decide whether the decision to cancel the Disability Support Pension was a correct or preferable decision.  This requires a determination as to whether the applicant was entitled to Disability Support Pension as at the relevant date of 1 March 2016.

Section 94(1) of the Social Security Act provides that a person is qualified for DSP if the person has a relevant impairment, and that impairment is 20 points or more under the Impairment Tables, and that the person has a continuing inability to work.  Those three requirements are cumulative in the sense that all must be satisfied in order to be entitled to a pension.  The Impairment Tables are those that are in place from 1 January 2012.

The report from Dr Le Cong identified four conditions, which I will consider separately in a moment.  The applicant provided a written statement, Exhibit 3, as part of his evidence which outlined his main points as follows:

(1) I suffer from a connective tissue disease, an autoimmune, inflammatory syndrome manifesting itself as osteoarthritis, ankylosing spondylitis, inflammatory bowel disease, lung disease, liver disease with pain and depression. 

(2) I also have subclinical radiation disease as a contributing factor to systemic inflammation. 

(3) The Impairment Tables, in its current form, do not offer opportunity to properly assess the state of my health, and do not indicate how big the impact of my medical conditions are having on me.

The applicant gave oral evidence that he was suffering from a number of conditions at the same time.  He said that as at March 2016 he was living alone, that he would do his own cleaning and cooking, although he ate out a lot, and he said that he did not do much cleaning because of the aches and pains that he was suffering.  He does not drive a car.  He lives in the city and does his shopping at a nearby Coles.  He is able to walk to the nearby Coles supermarket and to do his own shopping and to carry his shopping home.  He said that he could carry a weight of up to two kilograms and that he used a backpack which he was able to put on and off his back to carry his shopping home from the supermarket.

Mr Wos said that he can bend down to the level of his knees and he can turn his head.  This is consistent with the Job Capacity Assessment report which recorded that Mr Wos completes his household chores, including cooking and cleaning, without assistance.  It is also consistent with my observations of Mr Wos at the tribunal hearing.  The hearing was conducted over a period of close to three hours with only the one break, and Mr Wos appeared not to be in discomfort during the hearing, did not appear to need to get up from his seat, and indeed sat without a break for over an hour and was able to turn his head from side to side whilst the hearing was being conducted.

The first condition noted by Dr Le Cong in his report is that of ankylosing spondylitis.  His report says that the current treatment is anti-inflammatory drugs, that there has been some specialist consultation, albeit back in 1990 and 1994, that the current symptoms are multiple aches and pains, especially along the spine, and intermittent exacerbation causing significant restrictions of body movements and restricted breathing.  With respect to the impact on ability to function Dr Le Cong’s report said that there was reduced physical endurance, pain and inflammation of various joints.

In his oral testimony Dr Le Cong said that the main impact of this condition was pain and restriction and that he had been referred recently to a pain management clinic.  I find that this condition has been fully diagnosed, treated and stabilised, but that it only has a mild functional impact on activities involving spinal function.  Mr Wos said in evidence that he can bend to his knee level and that he can turn his head but with some difficulty, which is consistent with an allocation of five points under the Impairment Table 4, and I so find.

The next condition noted by Dr Le Cong is his obesity.  Dr Le Cong’s report says that the current treatment is diet management and physical exercise as permitted by his joints condition.  With respect to future and planned treatment he said that there is to be a referral to an obesity clinic.  There has been no treatment for this condition, so it is not considered permanent under section 6(4) of the Rules for applying the Impairment Table, and therefore no points can be allocated to this condition.

The next condition in Dr Le Cong’s report is the chronic bronchitis and frequent upper respiratory tract infections.  Dr Le Cong said orally that Mr Wos has had repeated infections of the lung.  However a high resolution CT scan of Mr Wos’s chest on 8 May 2013 was normal and certain findings were made, namely that:

The lung fields are clear.  No focal lesion.  No bronchiectasis.  No interstitial or nodular infiltrate.  No bronchial plugging.

Further there is a radiology report, albeit dated sometime after the relevant date of March 2016, namely on 21 December 2016.  This relates to a CT scan of the chest of the applicant, and the radiologist makes the comment that the lung fields are remarkably well preserved considering the given history, which is a reference to Mr Wos’s history of smoking.  Further the 21 December 2016 report says that:

there is mild non-inflammatory lower lobe bronchiectasis bilaterally, and affecting the right middle lobe to a slightly milder degree.

Dr Le Cong confirmed that this was the first diagnosis of bronchiectasis and that it would require further treatment from a specialist, and therefore it cannot be considered permanent and therefore can be allocated no points under the Impairment Tables, which is my finding.

The next condition in the report from Dr Le Cong is Crohn’s disease and liver cirrhosis and GORD, G-O-R-D.  Dr Le Cong says that this diagnosis is presumptive and that further investigations are required to confirm the diagnosis.  He says that the current treatment is diet modifications and that the future planned treatment would be management by specialists.  Dr Le Cong said in his oral testimony that the symptoms for the Crohn’s disease were diarrhoea, but that a specialist cannot yet give a firm diagnosis because a further colonoscopy is required.  Dr Le Cong said when being cross-examined that in effect there was no diagnosis and that was why there had been no treatment of the condition.

It is noted that there is a referral dated 21 September 2016 to a gastroenterologist, which states that Mr Wos requests a “review of his gastrointestinal condition as no firm diagnosis was achieved to tell if he has or not Crohn’s disease.”  That was a referral from Dr Le Cong and is consistent with his oral testimony.  Again this condition is not fully diagnosed and therefore receives no points. 

The applicant has not satisfied the 20 point requirement of section 94(1)(b) of the Social Security Act and is accordingly not qualified for a Disability Support Pension.  Although it is not necessary I note that the Job Capacity Assessment officer said that with intervention the applicant had a work capacity of between 23 and 29 hours per week, and there is no reason for me to disagree with that assessment.

The decision then of the Tribunal is to affirm the decision under review.  Mr Wos, that means that you have been unsuccessful with respect to the review application, but I take this opportunity of thanking you for your submissions and I appreciate the way you have conducted yourself at the hearing.  Thank you, Madam Interpreter, and thank you, Ms Edwards, for your assistance today.  The hearing is now concluded, thank you.

MATTER ADJOURNED         [3.17 pm]