Coleman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 32 (27 January 2011)

Last Updated: 27 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3032

GENERAL ADMINISTRATIVE DIVISION		)
	Re		WILLIAM COLEMAN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr Kerry Breen, Member

Date 27 January 2011

Place Melbourne

Decision

The decision under review is set aside. Mr Coleman qualifies for Disability Support Pension and was qualified as at 3 February 2009.

.................[signed].......................
Member

SOCIAL SECURITY - disability support pension – fully diagnosed condition – refusal of treatment with unacceptable side effects – use of the impairment tables – assessment of work capacity – decision under review set aside

Social Security Act 1991 ss 23(1), 94 and Schedule 1B

Administrative Appeals Tribunal Act 1975

Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 52 ALR 157

Kokona Tlonan and Secretary, Department of Social Security [1997] AATA 30

Pupovac and Secretary, Department of Family and Community Services [2004] AATA 977

Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249

Said Kiki and Director- General of Social Security [1984] AATA 411

Secretary, Department of Employment and Workplace Relations and Hatton [2007] AATA 1631

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

Stojanovic and Secretary, Dept of Employment and Workplace Relations [2007] AATA 1202

REASONS FOR DECISION

27 January 2011

Dr Kerry Breen, Member

THE DECISION UNDER REVIEW

1. On 3 February 2009, Centrelink cancelled Mr Coleman’s Disability Support Pension (DSP). Centrelink is the agency which provides services for the Department of Families, Housing, Community Services and Indigenous Affairs. Mr Coleman sought a review of that decision by a Centrelink Authorised Review Officer (ARO). The ARO affirmed the decision. Mr Coleman then sought a review of the decision by the Social Security Appeals Tribunal (SSAT). On 21 May 2009, the SSAT also affirmed the decision. Mr Coleman then applied to this Tribunal for review of the SSAT decision.
2. At the hearing, Mr Coleman was self-represented. Mr Andrew Carson, a Centrelink advocate, represented the respondent.

BACKGROUND

3. Centrelink granted Mr Coleman DSP on 15 July 2000. That decision was based on a Medical Assessment Report dated 23 May 2000, which was mostly completed by a registered nurse, supplemented by notes made by Dr S Browning. It appears that Dr Browning did not examine Mr Coleman. The authors of the report noted that they had access to a pathology report and to other reports, including one by a medical oncologist, Dr Robert McIntosh.
4. The Medical Assessment Report noted the diagnosis of moderate differentiated adenocarcinoma and the presence of slight jaundice observed by the registered nurse. The registered nurse gave Mr Coleman’s condition an impairment rating of 30 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) contained in Schedule 1B of the Social Security Act 1991 (the Act). She did not explain the basis of that rating. Dr Browning supported this assessment, after a delay during which he contacted Mackay Hospital. Dr Browning advised a review in two years time, should Centrelink grant Mr Coleman DSP.
5. In September 2002, as part of the planned review, Mr Coleman submitted a treating doctor’s report and a certificate completed by Dr M. Monsour of Maryborough, Queensland. The report was dated 6 September 2002. In response to the question as to how long Mr Coleman had been his patient, Dr Monsour wrote since 6 September 2002. The report refers to the diagnosis of rectal adenocarcinoma, rectal bleeding and treatment of diet only, exercise, medit. Dr Monsour advised that Mr Coleman was not likely to be able to do any work for at least eight hours per week in the next two years.
6. In completing the form titled Medical Review – Disability Support Pension, dated 12 September 2002, Mr Coleman reported some problems with concentrating and remembering, and added dietary constraints & treatment time necessary for treatment. Based apparently on these two documents, Centrelink decided to continue Mr Coleman’s DSP. Centrelink did not review his entitlement again until December 2008.
7. For the review in 2008, Mr Coleman submitted a treating doctor’s report by Dr Haines of Bundaberg on 5 December 2008. The report provides no information about how long Dr Haines had known the patient. Later it became clear that Mr Coleman had attended him only once for the report. Dr Haines wrote:

Bowel cancer. Colonoscopy & biopsy confirmed 1999. No conventional treatment undertaken. Pt has remained stable since but still has diagnosis of bowel cancer.

In answer to a question about the impact of the condition on Mr Coleman’s ability to function, he wrote lethargy.

8. The accompanying form, titled Disability Support Pension Medical Review and dated 8 December 2008, did not ask Mr Coleman to describe his disability. In answer to the question about treatment, he wrote that he was using meditation, exercise and diet.
9. On 19 January 2009, a Job Capacity Assessor (JCA), Ms Jane Skillington, interviewed Mr Coleman. In her report, in answer to the question as to whether his condition was fully diagnosed, treated and stabilised she wrote No. Her report identified her sources of medical information as:

- medical report of Dr L Haines Eastside Medical Centre ... dated 2/12.08
- phone discussion with Eastside Medical Centre 23/1/ 09 at 3.30pm

10. However, the report then revealed that the telephone call to Eastside Medical Centre determined that Dr Haines was no longer employed there and that Mr Coleman had only attended the practice on one occasion. The JCA’s report gave the following account of what Mr Coleman told Ms Skillington:

William reports diagnosis of Bowel Cancer in 2000 by biopsy and is managed with meditation (3 hrs per day), exercise (walks 2/3 hrs) and vegan diet (3/4 hrs food preparation). He states periodic pain and mild lethargy. William reports that has never accessed orthodox treatments since initial diagnosis and his lifestyle is centred around fighting the cancer.

11. Ms Skillington decided that Mr Coleman was capable of 30+ Hours of work per week and recommended vocational rehabilitation and personal counselling. As a result of the JCA’s report, on 3 February 2009 Centrelink cancelled Mr Coleman’s DSP.
12. Mr Coleman then requested a review by a Centrelink Authorised Review Officer (ARO) and as part of that process, the original decision maker, Z. A. Smith, wrote a letter to Mr Coleman, dated 26 February 2009, and stated:

You asked for that decision to be reconsidered because you stated that if you cannot maintain the treatment you are currently undergoing, would mean a death sentence. You state that your condition cannot be cured and you feel that if you maintain your current lifestyle your life expectancy is 2-3 years at best.

13. In the Decision Statement, dated 11 March 2009, the ARO wrote:

You have a medical condition of Bowel Cancer;
It is not a permanent condition and as such an impairment rating under the Impairment Tables cannot be considered...

The ARO affirmed the decision to cancel DSP.

14. Mr Coleman sought review of the ARO’s decision by the SSAT. On 21 May 2009, after a hearing conducted by video-link, the SSAT affirmed the decision. The SSAT noted that Mr Coleman stated he had only seen Dr Haines once for the purpose of a report to Centrelink and that he had shown his past medical records to Dr Haines. The SSAT noted that Mr Coleman had had rectal bleeding ever since he was diagnosed in 1999 and that his symptoms at the time of the hearing included a bit of diarrhoea and occasional discomfort on the left side of the abdomen about once a month. In finding against Mr Coleman, the SSAT stated:

He has not undertaken reasonable medical treatment to assess and treat his current symptoms eg blood tests to test for anaemia which could be amenable to simple therapy and medication for his diarrhoea and pain.

15. The SSAT did not canvas the full content of paragraph 6 of the Introduction to the Impairment Tables. The SSAT also found that, as at 3 February 2009, Mr Coleman’s symptoms did not significantly impact on his daily functioning and that as his current symptoms had not been investigated and treated, therefore, no rating could be assigned under the Impairment Tables.
16. In his application, dated 28 June 2009, to this Tribunal for a review of the SSAT decision, Mr Coleman attached a one page statement that included the following statements:

When questioned [by the SSAT at a hearing conducted by video link] I was too embarrassed to speak honestly in front of two women.
I believe that the tribunal misunderstood me when it concluded that my bowel discomfort “can disturb my sleep” when in fact it continuously disturbs my sleep ... They concluded I have occasional discomfort on the left side when in fact I have constant discomfort, including “occasional pain” which requires pain relief.

17. In his evidence before the SSAT, Mr Coleman said that he saw visible blood in his bowel motions about once or twice a week and said it never got better even when the bowel polyp was removed.

THE MEDICAL NARRATIVE OF MR COLEMAN

18. In 1999, at the age of 47 years, Mr Coleman first developed the symptom of rectal bleeding. A general practitioner, Dr S. Grimes, referred him for a colonoscopy, which was performed at Mackay Base Hospital on 15 April 1999. That examination revealed a 30 mm sessile polyp at 10-12 cm above the anal canal. The polyp was removed at the time of colonoscopy by a technique of elevation of the polyp by injection of adrenaline followed by snare polypectomy.
19. The polyp was sent for histopathological examination. The pathologist reported receiving two specimen containers. The pathologist noted that the specimen from container A consists of two grey polyps, the larger 13x7 mm and the specimen from container B consists of a 2 mm fragment of grey tissue. Microscopic examination showed that specimen A (the polyp) was a moderately differentiated adenocarcinoma and that specimen B was hyperplastic colonic or rectal tissue. [The Tribunal notes that no mention was made by the pathologist as to whether the question of complete or incomplete removal of the carcinoma had been considered and evaluated at the time of microscopic examination].
20. Mr Coleman was then referred to a surgeon, Dr Peter Day, who saw him on 4 May 1999. Dr Day recorded a 10-week history of rectal bleeding. He also recorded a summary of the discussion he had with Mr Coleman. He noted uncertain if all resected, it is not staged, likely to need surgery and may need chemo/radio. The record also indicated that he wanted to see Mr Coleman again in two weeks for further discussion.
21. Mr Coleman returned as requested two weeks later but was seen by a different surgical specialist, Dr Robert Presley. The record made by Dr Presley is detailed. He wrote that Mr Coleman wanted to treat himself with diet & meditation... and added I tried to explain to him in the strongest possible terms that his condition is serious and needs treatment. Dr Presley offered Mr Coleman a review in two weeks, a separate appointment to see an oncologist, and the option of seeking a second opinion in Brisbane or Townsville. Dr Presley was clearly concerned at Mr Coleman’s attitude to his diagnosis and treatment, as he brought in a nurse to listen to the discussion and to co-sign his account of it.
22. Another doctor at the same hospital, whose signature is illegible, saw Mr Coleman on 24 May 1999. That doctor noted the following:

Has major concerns re confrontation with Dr Presley. He felt intimidated, told he would die a ‘dog’s death’ & not given options re treatment.

23. Another general practitioner then referred Mr Coleman to Dr Robert McIntosh, an oncologist. Dr McIntosh saw him at Mackay Base Hospital in January 2000. Dr McIntosh’s report to the referring doctor was dated 24 January 2000. The second sentence of that report states:

A colonoscopy demonstrated a polyp in his mid rectum and biopsy of this confirmed a moderately differentiated adenocarcinoma. His rectal bleeding has continued until the present time, although this is not as profuse and is no longer bright red in colour. An anterior resection was recommended by both Robert Presley and Peter Day because of the very high chance of residual tumour...

24. The three sentences above are quoted in full as the first sentence may reflect the origins of later misunderstanding as to whether Mr Coleman had had a polyp removed or just a biopsy, the second sentence supports Mr Coleman’s contention that his rectal bleeding remained a problem from 1999 onwards and the third sentence suggests, contrary to the first sentence, that Dr McIntosh was aware that the cancer had been excised, perhaps incompletely, by the process of snare polypectomy, despite the doctor’s earlier reference to biopsy. Dr McIntosh’s report goes on to outline the advice he gave to Mr Coleman and Mr Coleman’s response to that advice.
25. It is clear from various reports before the Tribunal and from Mr Coleman’s oral evidence to the Tribunal, that between 1999 and 2009, Mr Coleman devoted much time and effort to maintaining his health through a self-treatment regimen which included a vegan diet, meditation and exercise. He believes that this regime has worked, as his only symptom for most of that time was his continued, but not daily, rectal bleeding. More recently, he has developed additional symptoms including lethargy, abdominal pain, frequent diarrhoea, disturbed sleep and weight loss. As described in a report Dr Anthony Balint of Yarra Junction, Victoria, in August 2009 Mr Coleman had a blood test which showed severe iron deficiency anaemia (Hb 6.9). A blood test in July 2010 showed that this condition had improved somewhat with his taking iron supplements (Hb 9.4, normal being greater than 13).

ADDITIONAL MEDICAL EVIDENCE PROVIDED BY MR COLEMAN

26. Dr Joanne Cummings of Bundaberg wrote a brief report, dated 14 November 2009, in which she stated:

He has shown be [sic] the reports of his endoscopy and biopsy in 1999 and 2000 which confirm a well differentiated adenocarcinoma of the bowel.

27. Dr Cummings also stated William has a pathological fear of doctors and medical intervention. She supported his informed decision not to have medical intervention and to follow a treatment plan involving diet, exercise and meditation. Her report noted anaemia with a Hb 6.9. It is unclear why Dr Cummings wrote and 2000 in the quote above, as the only procedure undertaken was in 1999 and this involved both a polypectomy and a biopsy. Again, while this discrepancy will not have any impact on the decision of the Tribunal, it was of concern to Mr Coleman, as he felt that such inaccuracies might have adversely influenced the assessments of JCAs and decision makers.
28. Dr Cummings provided a more detailed report dated 21 December 2009. In this report she stated:

... he is unwilling to have further investigations for fear that they themselves might affect his condition ... in the presence of his ongoing reports of rectal bleeding and altered bowel habit accompanied with his anaemia this would obviously make the presence of cancer much more likely.
Mr Coleman is fully aware that cancer can not be cured using alternative treatments but it can be treated and stabilized thus preventing metastases.
As he would not act upon the results, any further tests would prove pointless, even detrimental considering the possible side effects.

29. Dr Balint provided reports dated 3 February 2010 and 23 July 2010. In the first report, he noted that Mr Coleman had been attending him since 17 August 2009 and he wrote:

Adenocarcinoma of the bowel was diagnosed in May 1999. He chose to follow alternative treatment and natural therapies rather than standard medical management.
The condition has been managed with a naturopathic cancer diet, mineral and vitamin supplements, meditation and positive thinking techniques to target cancer and enhance immune system function.

In the second report, Dr Balint noted that:

He gave a history of having bowel cancer diagnosed on biopsy in 1999. He has had recurrent obvious rectal bleeding since that time resulting in marked anaemia...

30. Dr Balint also completed a Centrelink form titled Medical Report Disability Support Pension Review and dated 11 September 2009. In that report he wrote that the current symptoms were PR bleeding, iron deficiency anaemia, weakness, lethargy, tiredness, abdominal pain. In response to a question about how Mr Coleman’s condition currently affected his ability to function, he wrote Low energy and tiredness, low effort tolerance, impaired concentration, memory. Pain.

MR COLEMAN’S ORAL EVIDENCE

31. Mr Coleman recounted his current symptoms, which included weakness and lethargy, lower left-sided abdominal pain, ongoing rectal bleeding, frequent diarrhoea, gradual weight loss and disturbed sleep. He explained that he was reluctant to undergo a further colonoscopy because he was aware of the risk of bowel perforation and although he recognised this was not a common event, he felt that as his bowel was already damaged, his individual risk was likely to be greater. In addition, he was concerned that any complications would deplete his immune system and he had read that any procedure that involved cutting tissue could help spread his cancer.
32. Mr Coleman stated that as he had grown up in Yarra Junction in Victoria he knew Ian Gawler and the work of the Gawler Foundation. Upon hearing of his diagnosis of bowel cancer, Mr Coleman set out to learn as much as he could about cancer.

ADDITIONAL MATERIAL BEFORE THE TRIBUNAL

33. On 24 September 2009 Mr Coleman attended for a further JCA, conducted by Mr Ian Douglas, a registered psychologist. In his report, Mr Douglas recorded the symptoms that Mr Coleman described to him in the following terms:

It is understood that Mr Coleman is still experiencing the symptoms of rectal bleeding, pain and discomfort in the abdomen but no nausea. He stated that the abdominal pains were constant but did fluctuate in intensity with pain more intense in the morning. He suggested that the pain affected his concentration, his motivation and his capacity to undertake tasks/activities. Mr Coleman also felt that his condition had become worse over the past few years and said he now had to go to the toilet about 12 times a day and his stools varied from pellets to diarrhoea.

34. It is not clear when Mr Douglas completed his report, as the report itself is undated. The addendum canvasses Mr Douglas’ research into the alternative treatment regime being used by Mr Coleman as well as issues around what would be appropriate investigation and treatment for Mr Coleman at that point in time.
35. Centrelink arranged a third JCA report. It was prepared by Ms Soula Noutsis, a registered psychologist, assisted by Ms Eleanor Eshel, an occupational therapist, on 27 January 2010. Centrelink’s decision to arrange this report appears to have been based on a review of the file, as Mr Coleman was not asked to attend the assessment. In this report, for the first time, the issue of a colonoscopy being a treatment that is feasible and accessible and is a procedure that is regularly undertaken with a high rate of success and low risk to the patient is canvassed. The author determined that colonoscopy in this case is reasonable treatment according to the Social Security Act (1991).
36. Despite noting that Mr Coleman gave reasons for not wishing to have a colonoscopy, Ms Noutsis did not indicate whether she had considered the full text of paragraph 6 of the Introduction of the Impairment Tables. I suggest it was not within this JCA’s professional capacity to decide what was or was not reasonable treatment according to the Social Security Act (1991) and this represents function creep, as discussed in paragraph 115 below.
37. During an adjournment of the hearing of this matter pending a report from a colorectal surgeon, Centrelink arranged for a further face-to-face work capacity assessment, conducted on 1 October 2010 by another JCA, Mr Dean Sinclair, an accredited exercise physiologist. He was assisted by Lee Fatinel, a registered psychologist. The report provides a summary of the available medical evidence, which now included the opinion of Dr Ian Hastie, the colorectal surgeon. It states, among other things, that Mr Coleman strongly denies the removal of this polyp stating that there is no medical documentation that substantiates this claim.
38. Later on the same page, the authors record that they sought advice from a Dr Carolyn Fogarty of the Health Professional Advice Unit and that she stated that a colonoscopy is the ideal diagnostic tool to confirm this diagnosis. They concluded that:

The client has a temporarily reduced work capacity of 0-7 hours per week during the nominated period above [1 October 2010 – 1 January 2011]. This is due to current symptoms of frequent diarrhoea with pr bleeding, lethargy, tiredness, and abdominal pain which is impacting upon his ability to persist with work related activities. [Tribunal’s emphasis]

39. Later again in the report, there is a more detailed description of Mr Coleman’s diarrhoea and other symptoms, with mention of intermittent left buttock pain. In addition, the report noted that Dr Hastie had made a record of no weight loss and this was clarified by the JCA as follows the client reported to the assessor that he weighed 10 stone (approximately 63.5 kg) prior to diagnosis and now weighs 50 kg.
40. At the resumed hearing, Mr Coleman tendered a one page document headed Nursing Assessment which had been commenced at Mackay Base Hospital on 7 April 1999 and completed on 15 April 1999. In this report a registered nurse recorded specimen (small) X1 retrieved from pan from bowel ‘bloody’ secretions. Specimen placed in container. The Tribunal assumes that this was the smaller of the two fragments of polyp observed by the pathologist to be in container A. As already noted above, nothing of relevance to the Tribunal’s decision hinges on the above discrepancy in the two measurements of polyp size or on the nurse’s finding. However, the difference in measurement has been of concern to Mr Coleman.
41. Dr Ian Hastie saw Mr Coleman on 6 August 2010 and he wrote a three-page report dated the same day. The report gives a detailed description of Mr Coleman’s current symptoms and of a physical examination. Dr Hastie reported that Mr Coleman declined to have a per-anal digital examination or a rigid sigmoidoscopy.
42. Dr Hastie indicated that he felt that if the snare polypectomy in 1999 had left some residual carcinoma it would have unfortunately created complication well within this time frame. He stated that a further colonoscopy is unlikely to find an adenocarcinoma related to his previous adenocarcinoma diagnosed in 1999 but did not comment further on the likelihood or unlikelihood. He indicated that without a further colonoscopy he was unable to provide a diagnosis of Mr Coleman’s present condition. He concluded In summary I believe that it is very unlikely that Mr Coleman’s original diagnosis is responsible for his current symptoms.
43. Dr Hastie also commented on Mr Coleman’s current work capacity in the following terms:

Certainly with reference to the frequency of his bowel function as described by Mr Coleman as 12-20 times per day, it would be impractical to believe that this would not have some degree of imposition with regard to his level of function and his ability to undertake a task with any degree of effectiveness or efficiency.

44. The Tribunal notes that in Centrelink’s letter of instruction to Dr Hastie dated 4 August 2010, he was asked to address, among several matters:

3. Whether at the relevant date, being 3 February 2009, the conditions were permanent for the purposes of the Impairment Tables.
...
5. If the conditions are permanent, the impairment rating for each condition under the relevant Table/s.

As will become relevant below, Dr Hastie’s report gave no indication that he turned his mind to paragraph 6 of the Introduction to the Impairment Tables. In addition, although he was engaged by the respondent, Dr Hastie could not be expected to be familiar with the administrative requirements of s 94 and Schedule 1B of the Act.

45. Earlier in 2010, the respondent had sought the opinion of a gastroenterologist, Dr Charles Varley, on the issues of diagnosis and treatment of Mr Coleman. The respondent did not ask Dr Varley to see Mr Coleman. The respondent instead asked Dr Varley to comment on the likely diagnosis, based on all the available records and reports. In his report dated 28 May 2010, Dr Varley wrote:

It would be most unlikely that the Tumour identified 10 years ago is still present, as one would have predicted that Mr Coleman would have presented with disseminated Cancer before this time, and succumbed to this condition, or he would have developed Bowel Obstruction...

Dr Varley also recommended that a definitive diagnosis of his current state could only be made via further investigation, commencing with a colonoscopy.

THE LEGISLATION AND THE ISSUES

46. The key issues before the Tribunal are:

(a) what was the diagnosis of Mr Coleman’s condition at the time of the assessment period from 3 February 2009 and the following three months;

(b) was the condition permanent and was it fully diagnosed, stabilised and treated;

(c) did the condition warrant an impairment rating of 20 points or more; and

(d) if so, was Mr Coleman able, at that time, to undertake 30 hours of work per week?

A very important subsidiary question arising from issue (b) is whether Mr Coleman is obliged by law to undergo a colonoscopy in order to qualify for DSP?

47. These issues arise from the following relevant sections of the Social Security Act 1991:

Section 94 Qualification for disability support pension
(1) A person is qualified for disability support 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;
...
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

48. The legislation pertaining to the Impairment Tables is contained in s 23(1) and Schedule 1B of the Act.
49. Relevant to the issue of whether Mr Coleman’s condition was diagnosed, stabilised and treated is paragraph 6 of the Introduction of the Impairment Tables, which provides:

In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
What treatment or rehabilitation has occurred;
Whether treatment is still continuing or is planned in the near future;
Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
In this context, reasonable treatment is taken to be:
Treatment that is feasible and accessible locally at a reasonable cost;
Where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high rate of success and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
Evaluate and document the probable outcome of treatment and the main risks or side effects of the treatment; and
Indicate why this treatment is reasonable; and
Note the reasons why the person has chosen not to have treatment
[Tribunal’s emphasis]

CONSIDERATION OF THE ISSUES

What was the diagnosis of Mr Coleman’s condition at the time of the assessment period?

50. Some confusion has arisen over the years as to precisely what was done at the time of Mr Coleman’s colonoscopy in April 1999. I am satisfied that the original records show that at that procedure a sessile (i.e. flat) polyp was removed and that a separate biopsy was taken from another region of the colon. I am also satisfied that the doctor who performed that procedure estimated the polyp was approximately 30 mm in diameter. The specimen of the polyp that reached the pathologist was in two fragments, with the larger fragment measuring 13 x 7mm in diameter.
51. [The Tribunal is aware, of its own knowledge, that this apparent discrepancy between measurements of polyp size (i.e. by the colonoscopist and by the pathologist) has several potential explanations. These include the inaccuracy of estimating the size of any polyp viewed with the magnification of the colonoscope, the incomplete retrieval of the removed polyp, and shrinkage of the polyp when placed in fixative before being sent to the pathologist. As previously stated, the discrepancy is not relevant to the Tribunal’s decision.]
52. On 4 May 1999 Dr Shaw wrote a very brief letter of referral for Mr Coleman, addressed to surgeon Dr Day. Dr Shaw wrote This gentleman underwent a colonoscopy on 15/4/99. Bx [biopsy] of a polyp showed adenoca. Whether this inaccuracy (i.e. writing about a biopsy rather than about polyp removal) reflected misinformation, misinterpretation of information or attempted brevity is unknown. If Dr Shaw had gleaned the information just from the conclusions at the bottom of the one page colonoscopy report, it is easy to understand how he might have been misinformed.
53. A few months later, Dr McIntosh added to the confusion (see paragraph 24). While the discrepancy of measurement and the confusion that arose regarding biopsy versus polypectomy is of little or no consequence in terms of the final decision the Tribunal must make, these were matters of concern to Mr Coleman and thus I have addressed them in some detail.
54. In addition, I am satisfied that the examination of the excised polyp showed it to be a moderately differentiated adenocarcinoma. The key medical question is whether this cancer was incompletely removed and has since very slowly progressed leading to Mr Coleman’s symptoms in early 2009 and now. I am very reluctant to prefer the strongly held opinions of Drs Varley and Hastie to the opinions expressed by his treating doctors. Dr Varley was at some disadvantage as he was not asked to see Mr Coleman. Both specialists seem not to seriously have entertained the possibility that a very small amount of residual carcinoma remained after the 1999 polypectomy and thus they may have too rapidly dismissed the possibility that this residual cancer has grown slowly over the subsequent 10 years.
55. Neither specialist seems to have been aware of, or paid attention to, Mr Coleman’s consistent reporting of ongoing rectal bleeding since 1999. Dr Hastie has missed or overlooked a history of significant weight loss. In addition, neither specialist appears to have considered that the original pathology specimen of the removed polyp could be reviewed to see if more information about the probability or not of complete excision of the cancer was forthcoming. I should add at this point, that I made it clear to the applicant and the respondent at the hearing, that the Tribunal was constituted by a Member with medical expertise that includes gastroenterology.
56. The records created by Dr Day and Dr Presley in 1999 (and Mr Coleman’s perception of the information Dr Presley provided to him) strongly suggest that both doctors were very pessimistic that the procedure of polypectomy might have completely excised (and cured) the rectal cancer. Dr McIntosh shared this view in 2000.
57. I accept Mr Coleman’s evidence that his primary symptom of rectal bleeding continued after the 1999 procedure. I found Mr Coleman to be a person not given to exaggeration or overstatement. In addition, several records supported his evidence on this issue. This evidence is very significant as it points to the strong possibility that some rectal cancer remained after the polypectomy. The continued bleeding would also be likely to confirm in Mr Coleman’s mind the need to continue to use his self-treatment regimen.
58. I therefore prefer the diagnosis (in 2009) as expressed by two treating doctors (Drs Cummings and Balint), namely that Mr Coleman was suffering from the incompletely removed rectal cancer first diagnosed in 1999. In reaching this view, I also have had the benefit of hearing from Mr Coleman, whose description of the evolution of his symptoms is in keeping with such gradual progression. That progression is unfortunately very apparent when one compares Mr Coleman’s account of his health given to the SSAT in May 2009 and the account he gave to Dr Hastie in August 2010.
59. I thus find that as at 2009, Mr Coleman was suffering from the condition of adenocarcinoma of the rectum, the same condition with which he was first diagnosed in 1999. In addition, it appears to me, from analysing the various medical and other reports, that it is likely that this condition has progressed and may be about to enter a terminal phase.
60. In a situation where the accurate diagnosis of a medical condition is at issue, the Tribunal would usually prefer the opinion of specialists to those of treating general practitioners. However, this is not a usual situation. Indeed, it is highly unusual for the following reasons. Mr Coleman has very strongly held views about the value of unorthodox treatments and equally strong views about the approaches offered by orthodox medicine. Dr Cummings has described Mr Coleman as having a pathological fear of doctors and medical intervention. The records and reports of Dr Presley and Dr McIntosh, in 1999 and 2000 respectively, reveal that Mr Coleman’s views about self-managing his cancer were not swayed by firm advice to the contrary given by each specialist. The situation has been rendered more unusual by the decisions taken by Centrelink in 2000 to award DSP to Mr Coleman and then continue it after review in 2002. Another unusual aspect, flowing from my conclusion about diagnosis above, is that the original cancer detected in 1999 has indeed been present and not causing any problems for Mr Coleman (other than rectal bleeding) from 1999 until approximately 2-3 years ago.

Was Mr Coleman’s condition permanent and was it fully diagnosed, stabilised and treated as at 2009?

61. My assessment of the medical evidence as stated above (leading to the preferred diagnosis of rectal cancer, which began in 1999) to a considerable extent pre-empts and answers this question, especially when I contemplate the natural history of untreated bowel cancer. However, as the weight of opinion expressed by the various persons who addressed this question on behalf of the respondent was that his condition was not diagnosed, stabilised and treated, it is necessary for me to further explain my reasons for being satisfied that the opposite was the case. Those persons expressed the opinion that without Mr Coleman having another colonoscopy, the condition could not be regarded as fully diagnosed. The implication of their collective opinions is that Mr Coleman could not be entitled to DSP without submitting himself to this procedure.
62. This raises two questions. First, could a diagnosis (based on the balance of probabilities) be made now, without a further colonoscopy? The Tribunal’s answer to that question is canvassed above and is yes.
63. Secondly, is it a legal requirement that Mr Coleman undergo a colonoscopy? In the Tribunal’s view, the answer is no, based on a reading of paragraph 6 of the Introduction to the Impairment Tables and the Full Federal Court decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48.
64. If I were to accept the opinions of Drs Hastie and Varley, who recommended a colonoscopy, this would be tantamount to forcing Mr Coleman to undergo an invasive procedure about which he holds considerable fears. Additionally, Mr Coleman and at least one of his GPs, contend a colonoscopy will be of little or no value to him in terms of the likelihood of altering his medical future, given his strongly held views about treatment. While Mr Coleman’s views of treatment are not widely shared by the medical profession, the Tribunal can appreciate that Mr Coleman’s enjoyment of many years survival in relatively good health after being diagnosed with bowel cancer in 1999 has served to reinforce his own belief in his self-treatment.
65. Any fair reading of the full content of paragraph 6 of the Introduction to the Impairment Tables would make it clear that an application for DSP cannot be used as a means of compelling a person to follow a particular line of medical advice. In particular, I rely on that part of paragraph 6 that reads unless that treatment has associated risks or side effects which are unacceptable to the person [Tribunal’s emphasis]. That sentence clearly empowers the applicant to decide whether any treatment (or tests/procedures) has associated risks or side effects that are unacceptable to the applicant. However, the sentence may be qualified by the following sentence:

In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised. [Tribunal’s emphasis]

The Full Federal Court has considered the assessment of what might be regarded as a medical or other compelling reason and I will return to that aspect shortly.

66. In my view, although the Impairment Tables form part of a schedule attached to the Social Security Act 1991, they were drafted as a guide to medical practitioners and need to be interpreted as such. Paragraph 6 is confusingly constructed. On the one hand, it appears to indicate that a person may refuse treatment simply if it poses risks or side effects which are unacceptable to the person. In the next sentence, it refers to other compelling reason for a person not undertaking further treatment, raising a question as to who decides that reasons are compelling – the person with the condition or the medical practitioner who is using the Impairment Tables? The next and final section of paragraph 6 does not resolve this question. It reads:

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
Evaluate and document the probable outcome of treatment and the main risks or side effects of the treatment; and
Indicate why this treatment is reasonable; and
Note the reasons why the person has chosen not to have treatment

67. These above points provide no guidance for the doctor applying the Impairment Tables about whether the doctor is expected to make a judgement about other compelling reasons; and if so, what factors should be considered. It is important to observe that although the second half of paragraph 6 is clearly very relevant to the medical condition of Mr Coleman, it appears that a medical assessor has never explored its application. I return to this aspect in paragraph 79.
68. Before I examine closely the application of the phrase other compelling reasons, I need to comment on what might constitute treatment as provided for in paragraph 6 of the Impairment Tables.
69. In my view, a colonoscopy is to be included under the term treatment for at least two reasons. First, it is possible to physically treat colonic pathology with the procedure (and this is commonly done, as was the case with Mr Coleman’s initial colonoscopy). In addition, in Mr Coleman’s case, the procedure has been recommended as a prelude to other possible courses of medical action, and medical practitioners would generally regard that sequence of events as treatment for Mr Coleman. This interpretation is consistent with the previous decisions of this Tribunal (see for example Kokona Tlonan and Secretary, Department of Social Security [1997] AATA 30 and Pupovac and Secretary, Department of Family and Community Services [2004] AATA 977).
70. Mr Coleman’s has repeatedly and consistently expressed his reasons for deciding in 1999 to refuse orthodox treatment and in 2009 to refuse advice about a further colonoscopy. He is a man who, even before his diagnosis of rectal cancer, had adopted an alternative lifestyle to benefit his health. His reasons for refusing the treatment recommended in 1999 (treatment that he was advised probably would have included major abdominal surgery, chemotherapy and radiotherapy) were a combination of his observation of the unhappy outcome of such treatment in other people he knew and his own reading that led him to believe that an alternative regime of diet, meditation and exercise could control the progress of his cancer. He clearly followed that regime with great devotion.
71. Mr Coleman has also been consistent over the years in expressing his lack of confidence in orthodox medicine. Thus, he has mostly eschewed medical treatment, other than when required for other purposes such as provision of medical reports to Centrelink. His refusal of a colonoscopy is based on a combination of his knowledge that this procedure is not completely free of risk of serious complications, his belief that these risks will be higher for himself, his concern that the procedure might weaken his immune system and his state of mind that the findings at colonoscopy would not alter his approach to treatment of his condition. Clearly, for Mr Coleman colonoscopy has associated risks or side effects which are unacceptable to him. Such refusal is clearly contemplated in the wording of paragraph 6 of the Impairment Tables and in my view must be respected.
72. In addition, I must consider, pursuant to the Impairment Tables, what might, in 2009, and not in 1999, be deemed further reasonable medical treatment (that) is likely to lead to significant functional improvement within the next two years. I must also consider whether any recommended treatment is reasonable having regard to the definition of reasonable as including where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high rate of success and low risk to the patient. This means that I necessarily have to consider the stage that Mr Coleman’s condition had reached in 2009 (and because of the phrase within the next two years, it is impractical to ignore the stage his condition may now have reached).
73. I have sought precedent decisions about whether an applicant for DSP is expected to follow medical advice even when that advice is unacceptable to that person. I have also sought precedent decisions that have addressed the application of paragraph 6 of the Introduction to the Impairment Tables.
74. In Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 52 ALR 157, the applicant had declined surgery (lumbar laminectomy) for a back condition because he feared surgery. Although that decision was based on the 1947 Social Security Act, it does contain a principle that has been applied in subsequent cases before this Tribunal. In that case, Smithers J stated at 160 to 161:

...it has been felt to be unsatisfactory that a person who refuses to undergo treatment which would probably cure his incapacity and which it would be reasonable, objectively regarded, for him to undergo, should qualify for a pension. Common sense suggests that it would be unfair that the community should pay a pension to such a person. As a result, it has been thought proper to import, by analogy, the notion that incapacity which is curable by the adoption of measures which it is objectively reasonable to take, is not permanent incapacity.
There is however, in my opinion, no warrant for this. Under the Act qualification for a pension depends upon a state of fact. The Act does not lay down as a condition of the qualification that there be a reasonable cause for its existence.......
In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse...
...Dealing with the plain question of fact, with respect to a man who can be cured only by treatment objectively reasonable, but actually not available to him because of fear or other reason, a Tribunal would, in my opinion, find that that man was permanently incapacitated for work within the meaning of the Act.

75. The most relevant aspect of that decision is that the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse... As should be clear in these reasons for decision, I have paid attention to this aspect and satisfied myself that Mr Coleman’s refusal of treatment meets the above criterion.
76. The approach of Smithers J was deemed be relevant to the current Act by Deputy President Forgie in Kokona Tlonan and Secretary, Department of Social Security [1997] AATA 30.
77. The respondent submitted in its Statement of Facts and Contentions that the Full Federal Court decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 was relevant. In that case, a man applying for DSP suffered longstanding anxiety and depression (accompanied by considerable alcohol use, which he claimed helped relieve his tension) and expressed reservations about the side effects of recommended medications, side effects that he deemed were an unacceptable risk. The Court discussed the relevance of Dragojlovic in depth and deemed it not to apply. The Court said at [23]:

In our view, that history leaves no room for the assumption that there has been a continuity of policy from the time of Smithers J’s decision on Dragojlovic to the present. The meaning and application of the current provisions must be determined independently by a careful construction of those provisions.

78. In the end, Jansen’s case hung not on his fear of side effects of recommended medications but on his refusal to accept other offered treatments, including treatment for alcohol dependence and the Court commented at [40]:

The fact that Mr Jansen did not want to cease drinking could hardly amount to a compelling reason for refusing that treatment.

79. The decision in Jansen canvasses other matters of direct relevance to the case under consideration. The Federal Court turned its attention to the application of the phrase other compelling reason and examined how the adjective compelling should be applied and by whom. The Court stated at [29]-[30]:

In support of its contention that the test of a compelling reason is subjective, the respondent points to the fact that clause 6 assumes a person will generally wish to pursue reasonable treatment unless the “risks and side effects” of the treatment are unacceptable to the person. The starting point for the enquiry is that, subjectively, the person concerned finds the treatment unacceptable. It is clear that, except where the reason for not undergoing treatment is a medical reason, which includes the treatment’s prospect of success, it will generally – if not always – be personal to the applicant and therefore subjective. It will be his or her reason (as opposed to the medical officer’s reason) for not undertaking treatment and, assuming that the reason given is the applicant’s genuine reason, there is no more to be said on that issue. However, it does not follow from the fact of the reason being subjective, that the question whether it is a compelling reason is also a subjective decision of the applicant. (Bolding is in the original).
We accept the respondent’s submission that a “medical or other compelling reason” for a person not undertaking treatment covers more than a reference to the “risks and side effects” of the treatment. There is also much force in the respondent’s submission that, in context, “other compelling reason” may include physical, legal and moral concerns, however it is not necessary for us to consider that issue here. [Tribunal’s emphasis]

80. Paragraphs 31 to 37 of Jansen canvassed various definitions (dictionary and precedent based) of the words compel and compelling, seemingly favouring, but not clearly stating, a conclusion that there was no objective standard whereby a decision maker could apply the adjective compelling. Their Honours went on to state at [38]-[39]:

In this case it is quite clear from the context provided by clause 6 of the Introduction ... that whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the introduction refers to functional improvement not being expected or there being “a medical or other compelling reason” for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must decide if the reason for the person not undertaking treatment falls within the circumstances identified on the Introduction.
As Mr Hanks put it, the appropriate question for the decision maker to ask is “Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?”. Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6. It follows that the primary judge erred in focussing on the purely subjective aspect of the test in clause 6.

81. The above decision is also of relevance to a separate issue I deal with later; namely the role of Job Capacity Assessors vis-à-vis the role of medical officers in using and interpreting the Impairment Tables.
82. This Tribunal has also considered the issue of refusal of treatment under the current legislation (in the context of whether a condition had been diagnosed, treated and stabilised) on a number of occasions. These have included:
    • − Kokona Tlonan and Secretary, Department of Social Security [1997] AATA 30 where the issue was about following medical advice for treatment of persistent migraine;
    • − Secretary, Department of Employment and Workplace Relations and Hatton [2007] AATA 1631 where the issue was about the adequacy of treatment for resistant epilepsy and in particular if the applicant needed to be referred to a special epilepsy clinic;
    • − Pupovac and Secretary, Department of Family and Community Services [2004] AATA 977 where the issue was the reasonableness of coronary angiography when the applicant had expressed fear of the procedure;
    • − Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 where the issue was refusal to use corrective lenses because of side effects and past experience, whereby the applicant believed that the use of lenses had weakened his vision; and
    • − Said Kiki and Director-General of Social Security [1984] AATA 411 where the applicant was reluctant to undergo a laminectomy because his wife was strongly opposed to the surgery.
83. Of these cases, only Pupovac bears any similarity to Mr Coleman’s situation. However, in that case the applicant had reservations about coronary angiography that were yet to be fully explored. None of the other decisions related to clinical states directly comparable to the situation of Mr Coleman and none canvassed any broad principles about the application of paragraph 6 of the Introduction to the Impairment Tables.
84. As Deputy President Forgie stated in Kokona Tlonan at [52]:

What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case.

I agree with this statement and adhere to it in this decision.

85. In Stojanovic and Secretary, Dept of Employment and Workplace Relations [2007] AATA 1202, the Tribunal commented on the interpretation of the Introduction to the Impairment Tables. The case related to a DSP claim for chronic back pain. The issue was whether the condition had been fully treated and whether the applicant should accept treatment that was advised. The Tribunal stated that [32]:

The preferable interpretation of paragraph 6 is that it permits a conclusion that a condition has not been fully treated if the hypothesised treatment (including treatment that has in fact been recommended by treating medical advisers) is feasible and accessible and provides a reliable expectation of significant functional improvement – even if that reliable expectation is not based on a positive belief in the actual probability of the desired outcome.

86. Having carefully read the Full Federal Court decision in Jansen and applied the principles there espoused, I am satisfied that as the decision maker, it is my task to consider, on the evidence and material before me, whether Mr Coleman’s reasons for not accepting medical advice to undergo a colonoscopy were compelling. I am also required to consider if Mr Coleman genuinely held those reasons.
87. In the present case, having already made a finding as to what is the preferred diagnosis of Mr Coleman’s condition, I cannot now separate all the implications of this diagnosis from my decision as to what is reasonable when an applicant for DSP refuses an investigation that has associated risks or side effects which are unacceptable to the person. Those implications include the following:

(a) in preferring the diagnosis of cancer of the rectum, I am also satisfied that Mr Coleman’s condition has been adequately investigated;

(b) Mr Coleman has cancer of the rectum, which is a steadily progressive disease when not treated by orthodox measures;

(c) in regard to the question of whether his condition has been adequately treated, I accept that he has not received orthodox treatment. However, I also note that Mr Coleman would not accept orthodox treatment even if any assessments (which he refuses) indicated that orthodox treatment was still feasible;

(d) given the natural history of untreated rectal cancer (i.e. to slowly progress to a fatal outcome) and his account of his slowly worsening state, I am satisfied that his condition is stabilised. Therefore, the question of whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years is answered in the negative.

88. I am satisfied that Mr Coleman is genuine in his stated reasons for not wanting to have further investigation by way of colonoscopy in 2009. His reasons are several, have been consistently held for many years, and, although likely to be rejected by many or most orthodox medical practitioners, are compelling to my mind in the clinical context as at February 2009.
89. For all the above reasons, and applying the Impairment Tables, I am satisfied that as of February 2009, Mr Coleman’s condition of rectal cancer was permanent, and was fully diagnosed, stabilised and treated.

Did Mr Coleman’s condition warrant an impairment rating of 20 points or more?

90. This question is the most difficult to answer on the material before me as I am asked to adjudicate on a situation that existed nearly two years ago. The applicant, understandably, cannot now give reliable evidence about his precise state of health then, as so much time has passed.
91. Dr Balint in Victoria, who together with Dr Cummings in Queensland, is the only treating doctor in whom Mr Coleman has trust, was of the opinion that Mr Coleman’s condition warranted an impairment rating of 20 points. However, Dr Balint did not explain the basis, via the Impairment Tables, of this opinion. Dr Cummings supported the continuation of the DSP but did not express an opinion as to an impairment rating. While it may seem strange that Mr Coleman has treating doctors in two states, this is explained by his agreement with family members that he will come to Victoria regularly for 2-3 months at a time to take his share of caring for his mother, who is seriously unwell.
92. Drs Varley and Hastie declined to make any assessment under the Impairment Tables, as in their view, without a colonoscopy, his condition could not be regarded as diagnosed, treated and stabilised.
93. I am satisfied that during the period in question Mr Coleman was rendered unwell by the condition of rectal cancer and was troubled by symptoms of rectal bleeding, tiredness secondary to anaemia, diarrhoea and abdominal pain.
94. In applying the Impairment Tables, I am aware that some other Tribunal members have expressed reservations about the appropriateness of the Tribunal doing so, having regard to paragraph 4 of the Introduction to the Impairment Tables, which states that A rating can only be assigned after a comprehensive history and medical examination. However, I am however satisfied that the reports of the four doctors represent a comprehensive history and medical examination. I am also reassured about standing in the shoes of the decision maker under s 43(1) of the Administrative Appeals Tribunal Act 1975 which reads:

For the purposes of reviewing a decision, the tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...

95. To meet the requirements specified in the Impairment Tables, under paragraph 4, I also need to be satisfied that the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step must be to establish a working diagnosis, based on the best available evidence. Under paragraph 5:

the condition must be considered to be permanent. ... it is accepted as being permanent if in the light of the available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years.

96. As clearly stated above, I am satisfied that Mr Coleman’s rectal cancer is a permanent condition. I am also satisfied that, having regard to paragraph 6 of the Introduction to the Impairment Tables, and based on the best available evidence, his cancer has been fully documented, investigated, treated and stabilised.
97. The application of the Impairment Tables calls for a single medical condition to be assessed on all relevant tables, so long as double assessment of a single loss of function is avoided. In Mr Coleman’s case, I find that Tables 11.2 (Gastrointestinal: Pancreas, Small and Large Bowel, Rectum and Anus) and Table 20 (Miscellaneous ... Chronic Fatigue or Pain) are the relevant tables.
98. I have earlier emphasised that Mr Coleman’s situation is not a common one. This becomes apparent yet again when attempting to apply Table 11.2, as the Table calls for persistent symptoms despite optimal treatment. Given my earlier findings, and Mr Coleman’s reasons for not accepting orthodox treatment, I am of the view that in all the circumstances, Mr Coleman’s treatment is optimal for him as an individual.
99. Mr Coleman’s bowel and abdominal symptoms in early 2009 fitted somewhere between 10 impairment points (bowel disorder: frequent moderate symptoms despite optimal treatment) and 20 impairment points (bowel disorder: marked symptoms, such as regular diarrhoea and frequent abdominal pain, only partially controlled by optimal treatment). [I note in passing that Table 11.2 mentions abdominal pain in relation to 20 points but not in relation to 10 points.] There being no option of a score between 10 and 20, and having regard to the natural progression (worsening) of rectal cancer, an appropriate award in this instance is 20 points.
100. I have also selected Table 20 in order that Mr Coleman’s impaired capacity for work related to the symptoms of lethargy and tiredness secondary to anaemia are adequately assessed. Table 20 refers to

Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

Fifteen impairment points are appropriate under Table 20 for the above combination of symptoms.

101. Thus, I assess Mr Coleman’s condition, at 3 February 2009, as earning 35 impairment points in total.

Was Mr Coleman able at that time to undertake 30 hours of work per week?

102. In my view, if a person is not obliged under the legislation to follow orthodox medical advice and if (because of personal beliefs) the person follows a time-consuming, alternative treatment regime, a question then arises as to whether the requirements (in this case the time requirements) of that treatment regime become part of the consideration as to whether Mr Coleman is able to work. By analogy, a person receiving intensive orthodox medical treatment such as daily radiotherapy may not be capable of attending work.
103. Mr Coleman’s capacity to work as assessed by various JCAs depended very heavily on his frank description of the time and effort he put into meditation, food preparation and daily exercise. The JCAs seem to have given little consideration to the impact of his various symptoms on his capacity for any work (other than self-care). The JCAs appear to have given no consideration to the possibility that a return to work would be likely to seriously impede Mr Coleman’s self-treatment (treatment that had in effect been sanctioned by decisions of Centrelink in 2000 and 2002). As stated in a letter dated 26 February 2009 from the Centrelink decision maker, Z A Smith, to Mr Coleman:

You asked for that decision to be reconsidered because you stated that if you cannot maintain the treatment you are currently undergoing, would mean a death sentence. You state that your condition cannot be cured and you feel that if you maintain your current lifestyle your life expectancy is 2-3 years at best.

104. In their assessment of Mr Coleman’s work capacity, the JCAs depended heavily upon the medical information available about the client’s diagnosis, prognosis and treatment of any medical condition(s). As a central issue before me are those very same medical issues, the various JCA reports provided are necessarily of little value. They do however serve a different function, in that where Mr Coleman has been interviewed for an assessment, I have been able to extract a record of what he told each assessor about his symptoms and current incapacity.
105. Setting aside the issue of the likely consequence of seriously impeding Mr Coleman’s self-treatment for one moment, there are conflicting accounts of Mr Coleman’s capacity for work in the early part of 2009. Ms Skillington saw Mr Coleman on 19 January 2009. She wrote:

William reports diagnosis of Bowel Cancer in 2000 by biopsy and is managed with meditation (3 hrs per day), exercise (walks 2/3 hrs) and vegan diet (3/4 hrs food preparation). He states periodic pain and mild lethargy. William reports that has never accessed orthodox treatments since initial diagnosis and his lifestyle is centred around fighting the cancer.

106. Ms Skillington decided that Mr Coleman was capable of 30+ Hours of work per week and recommended vocational rehabilitation and personal counselling. However, the recent medical information available to Ms Skillington was extremely limited. It consisted only of a brief report written by Dr Haines after Mr Coleman attended him on one occasion. Because of the limited medical information on which it is based, I am unwilling to attach weight to this opinion. This is no reflection on Ms Skillington.
107. The SSAT assessed Mr Coleman’s work capacity at the hearing on 21 May 2009. The SSAT reported that Mr Coleman had had rectal bleeding ever since he was diagnosed in 1999 and that his symptoms at the time of the hearing included a bit of diarrhoea and occasional discomfort on the left side of the abdomen about once a month. In finding against Mr Coleman, the SSAT stated:

he has not undertaken reasonable medical treatment to assess and treat his current symptoms eg blood tests to test for anaemia which could be amenable to simple therapy and medication for his diarrhoea and pain.

108. The above information appears to be conflicting and is difficult for me to evaluate. On the one hand the SSAT uses words that suggest minor symptoms and on the other hand it is suggesting that Mr Coleman should be using medication for diarrhoea and pain. In his application to the Tribunal for a review of the SSAT decision, dated 28 June 2009, Mr Coleman attached a one page document that included the following statements:

When questioned about my bowel function I was too embarrassed to speak honestly in front of two women.
I believe that the tribunal misunderstood me when it concluded that my bowel discomfort “can disturb my sleep” when in fact it continuously disturbs my sleep ... They concluded I have occasional discomfort on the left side when in fact I have constant discomfort, including occasional pain which requires pain relief.

109. Having had the opportunity to interact with Mr Coleman over two half days of hearings, I can readily appreciate that Mr Coleman may not have coped well with a video-link interview. Thus, I do not attach great weight to the conclusions drawn by the SSAT in regard to work capacity.
110. Dr Balint outlined Mr Coleman’s symptoms in two separate reports but he wrote the reports four and five months after the assessment period. He provided a medical certificate dated 17 August 2009 in which he listed Mr Coleman’s symptoms as including tiredness, weakness, abdominal pain and abnormal bowel action. Dr Balint also completed a Centrelink form titled Medical Report Disability Support Pension Review on 11 September 2009. In that report, he wrote that the current symptoms were PR bleeding, iron deficiency anaemia, weakness, lethargy, tiredness, abdominal pain. In response to a question (H) in that form about how Mr Coleman’s condition currently affects his ability to function, he wrote Low energy and tiredness, low effort tolerance, impaired concentration, memory. Pain.
111. The respondent submitted that the updated JCA’s report of 27 January 2010 was relevant to the Tribunal’s assessment of work capacity. I have summarised that report above. I have some reservations about that report. The JCA did not ask Mr Coleman to attend an interview and seems to have based the report on a review of the file. In the report, the issue of colonoscopy as being a treatment that is feasible and accessible and is a procedure that is regularly undertaken with a high rate of success and low risk to the patient is canvassed.
112. Ms Noutsis determined that colonoscopy in this case is reasonable treatment according to the Social Security Act (1991). Although she noted that Mr Coleman gave reasons for not wishing to have a colonoscopy, Ms Noutsis did not indicate if the full text of paragraph 6 of the Introduction to the Impairment Tables had been considered.
113. In the light of the Federal Court decision of Jansen I doubt that Ms Noutsis is qualified or authorised to give medical advice about the need for a colonoscopy. I hold a similar reservation about Mr Douglas’ advice (in his addendum to the JCA conducted on 24 September 2009) about the need for a colonoscopy or other medical investigations. In relation to Ms Noutsis’ views about work capacity, I have already commented generally above (see paragraph 104) about the limitations of such assessments when the medical issues have not yet been determined.
114. If the assessment of work capacity was to be based solely on the severity of Mr Coleman’s symptoms as at 3 February 2009, I would be inclined to the view that he may have been capable of sedentary work of up to 15 hours per week and may even have been capable of 30 hours per week. However, I believe I must also take into account the impact on Mr Coleman of not being able to maintain his self-treatment regimen if he returned to work. Given:
     • − the duration of his regimen to that point in time;
     • − his understandable belief that it had helped him survive cancer for ten years; and
     • − the likelihood that he would have been very adversely affected (in the very least, adversely affected emotionally) by a return even to part time work.

It is my view that at that time, when combining his ill-health with this latter aspect, he did not have the capacity to work for more than 30 hours per week.

SOME COMMENTS ON THE ADMINISTRATION OF MR COLEMAN’S DSP APPLICATIONS

115. There were a number of aspects of the application of due administrative process to the handling of Mr Coleman’s DSP that are worthy of comment. These include:

(a) the apparent delegation of the assessment of Mr Coleman’s medical condition to a registered nurse in May 2000, which led to the clinical finding of jaundice. In the clinical setting at that time, if jaundice was truly present, this would have indicated a poor prognosis and the claimed observation of jaundice almost certainly influenced the initial decision to award DSP;

(b) a failure to review Mr Coleman’s DSP between 2002 and 2008; and

(c) the delegation of all face-to-face assessments of Mr Coleman to non medically qualified JCAs (until a face-to-face medical assessment was requested by the Tribunal on the first day of the hearing). In the absence of informed medical officer input, it is understandable that JCAs felt obliged to try to fill that gap (see above paragraphs 9, and 34 to 36), resulting in their inappropriately attempting to provide medical advice, a development that represents “function creep”.

116. I am reinforced in my views about this last aspect by the Federal Court decision in Jansen, where their Honours refer specifically to the role of the medical officer in applying the Impairment Tables, in so far as they relate to the matters covered by paragraphs 4 to 6 of those Impairment Tables.

FINDINGS OF FACT

117. At the relevant time (i.e. from 3 February 2009 and for the subsequent three months), Mr Coleman suffered from the condition of rectal adenocarcinoma that had been first diagnosed in 1999.
118. This condition was permanent and had been fully diagnosed, treated and stabilised.
119. Through the application of the Impairment Tables, Mr Coleman’s condition warranted 35 impairment points.
120. Mr Coleman’s condition rendered him incapable of working for 30 hours per week.

DECISION

121. Having met all the requirements of s 94 of the Act, Mr Coleman qualifies for DSP and was so qualified as at 3 February 2009. I therefore set aside the decision under review.
     

I certify that the one hundred and twenty-one [121] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Kerry Breen, Member

Signed: ...........................[signed]................................................

Associate Grace Horzitski

Dates of Hearing 30 July 2010, 22 December 2010

Date of Decision 27 January 2011

Advocate for the Applicant Self-represented

Advocate for the Respondent Andrew Carson, Centrelink Advocacy Branch