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

Aberdour; Secretary, Department of Social Services and (Social services second review) [2020] AATA 4182 (19 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1358
Re:Secretary, Department of Social Services
APPLICANT

Stacey AberdourAnd
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:19 October 2020
Place:Brisbane

The Tribunal sets aside the decision under review and replaces it with a decision that the Respondent did not qualify for the disability support pension during the qualification period.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical condition fully diagnosed, fully treated and fully stabilised – decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
19 October 2020
INTRODUCTION & CLAIM HISTORY

On 9 January 2018 Ms Stacey Aberdour (“Ms Aberdour”) lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as:[1]
·generalised anxiety disorder (GAD)
·post-traumatic stress disorder (PTSD)
[1] Exhibit 1, T Documents, T9, pages 79 – 109, Ms Aberdour’s Claim for DSP dated 7 January 2018 and received by Centrelink on 9 January 2018.
In January 2018 the Department of Human Services (“Centrelink”) arranged for Ms Aberdour to be assessed by a psychologist to ascertain Ms Aberdour’s eligibility for the DSP. The psychologist reported that:[2]
(a)Mr Aberdour’s psychological conditions were not fully diagnosed, treated and stabilised; and
(b)there was no supporting documentation from a clinical psychologist or psychiatrist confirming Ms Aberdour’s psychiatric conditions.
[2] Exhibit 1, T Documents, T10, pages 110 – 111, DSP medical assessment recommendation report dated 16 January 2018.
Based on the psychologist’s assessment, Centrelink rejected Ms Aberdour’s claim for DSP on 16 January 2018.[3]
[3] Exhibit 1, T Documents, T11, pages 112 – 113, Letter from Centrelink dated 16 January 2018.
Ms Aberdour then provided Centrelink with some additional medical reports including:
(c)a medical certificate from Dr Asha Sadasivan, Consultant Psychiatrist, dated 29 January 2018 which provided that:[4]
[4]     Exhibit 1, T Documents, T13, page 119, Medical certificate dated 29 January 2018.
(i)Ms Aberdour had post-traumatic stress disorder (“PTSD”) and was having flashbacks, nightmares, anxiety symptoms and was currently taking Luvox. 29 January 2018 was the first time Dr Sadasivan examined Ms Aberdour;
(d)a report from Dr Sadasivan dated 26 February 2018 confirming that Ms Aberdour suffers from PTSD following an incident at work a few years back; [5]
(e)a medical certificate of Dr James Courts, General Practitioner, dated 5 July 2018 which provided that Ms Aberdour:[6]
(i)had an exacerbation of her PTSD which was causing insomnia, nightmares, flashbacks and intense anxiety symptoms with disassociated episodes;
(ii)Ms Aberdour was being treated with psychology and psychiatry input and medication;
(iii)was suffering from temporary shoulder pain resulting in reduced movement and strength; and
(iv)was treating her shoulder with exercises, physiotherapy and analgesia.
[5]     Exhibit 1, T documents, T14, page 120, report of Dr Sadasivan dated 26 February 2018
[6]     Exhibit 1, T documents, T16, page 122, report of Dr Courts dated 5 July 2018
Ms Aberdour sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).
The review by the ARO was unsuccessful on the grounds that the ARO determined that Ms Aberdour’s psychological conditions were not fully diagnosed, treated and stabilised during the relevant qualification period.[7]
[7] Exhibit 1, T Documents, T17, pages 123 – 128, Decision of ARO and notes dated 25 July 2018.
Ms Aberdour lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[8] The SSCSD found that Ms Aberdour was qualified for the DSP and set aside the ARO’s decision on 1 February 2019.[9] The SSCSD concluded that Ms Aberdour's mental health condition was fully diagnosed, treated and stabilised and caused a severe impairment attracting a rating of 20 points under Table 2 of the impairment tables and that Ms Aberdour qualified for the DSP.
[8] Exhibit 1, T Documents, T19, pages 130 – 131, Request statement dated 5 October 2018.
[9] Exhibit 1, T Documents, T2, pages 4–19, SSCSD’s Decision and Reasons for Decision dated 1 February 2019.
The Secretary has sought a review of the SSCSD’s decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T1, pages 1-3, Application for Review of Decision dated 12 March 2019.
At the hearing the Secretary was represented by Ms Jones-Bolla. Ms Aberdour gave evidence by telephone. Dr Aleksandra Isailovic, Consultant Psychiatrist, was called as an independent expert on behalf of the Secretary and gave evidence by telephone. Dr Isailovic also prepared a report based on her assessment of the medical information available and her examination of Ms Aberdour on 9 August 2019.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Aberdour must have a physical, intellectual or psychiatric impairment.
(b)Ms Aberdour’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”).[11]
(c)Ms Aberdour must have a continuing inability to work.
[11] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Aberdour meets the Section 94 Requirements is the date of the claim (in this instance as at 9 January 2018), unless Ms Aberdour becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[12] Therefore, in order to qualify for DSP Ms Aberdour must have met the Section 94 Requirements between 9 January 2018 and 9 April 2018 (“Qualification Period”).
[12] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
Medical evidence concerning the functional impact of Ms Aberdour’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[13]
[13] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[14] They are function based[15] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[16]
[14] Determination, ss 4(2) and 5(2)(a).
[15] Determination, ss 5(2)(b) and (c).
[16] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[17]
(a)Ms Aberdour’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, considering available evidence, to persist for more than 2 years.
[17] Determination, see s 6(3).
Ms Aberdour’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[18]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[18] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[19] the following must be considered:[20]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[19] For the purposes of ss 6(4)(a) and (b) of the Determination.
[20] Determination, see s 6(5).
A condition is fully stabilised[21] if:[22]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[23] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[21] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[22] Determination, see s 6(6).
[23] For reasonable treatment see s 6(7) of the Determination.
“Reasonable treatment” is treatment that:[24]
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[24] Determination, see s 6(7).
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
DID MS ABERDOUR HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT(S) DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[25]
[25] Determination, s 3.
Ms Aberdour’s Mental Health Conditions – Medical Evidence
Ms Tegan Anderson, Psychologist, reported on 6 December 2017 that:[26]
[26] Exhibit 1, T documents, T7, pages 75-76, and T8, pages 77-78, reports of Ms Anderson dated 6 December 2017.
(a)since December 2015 she had seen Ms Aberdour on six occasions for the treatment of depression, anxiety, stress, and PTSD symptomology;
(b)she has been treating Ms Aberdour with a variety of interventions including biofeedback gradual exposure therapy and cognitive behavioural therapy;
(c)at her initial appointment Ms Aberdour reported a dramatic incident at a workplace and she had presented with symptoms of post-traumatic stress;
(d)Ms Aberdour continues to present with symptoms and has recently experienced several events which have exacted exacerbated the presentation;
(e)Ms Aberdour has reported that:
(i)exposure to anxiety producing situations has resulted in panic attacks;
(ii)she avoids events;
(iii)she is frequently unable to work;
(iv)she is unable to attend public places such as shopping centres;
(v)her symptoms occur most days of the week and have been persisting for over 12 months;
(f)Ms Aberdour had reported a consistent improvement in her levels of coping since attending sessions and would benefit from additional sessions.
The other medical evidence relevant to the Qualification Period is set out in paragraph 4 above.
Conclusion on Impairment
Considering the above medical evidence, the Tribunal finds that during the Qualification Period Ms Aberdour suffered a mental health impairment and that the requirement in section 94(1)(a) of the Act has been met. This is not disputed by the Secretary.[27]
[27] Exhibit 3, Secretary’s Statement of Issues, Facts, and Contentions dated 20 March 2020, paragraph 5.20.
There was some reference made to Ms Aberdour having pain in her shoulder. However, there is a lack of medical and corroborating medical evidence and therefore the Tribunal is unable to make an assessment of this condition for the purpose of this application.
DOES MS ABERDOUR’S MENTAL HEALTH IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Is Ms Aberdour’s Mental Health Condition permanent and likely to persist for at least 2 years?
What is the Correct Diagnosis?
Ms Aberdour contends that the correct diagnosis of her condition is PTSD. Ms Aberdour relies on the diagnosis of Dr Sadasivan, which was accepted by Dr Courts (her GP) and Ms Anderson (her psychologist).
The Secretary contends that the correct diagnosis of Ms Aberdour’s mental health condition was not PTSD but was generalised anxiety disorder (“GAD”) and probable personality disorder of avoidant/dependant type, as opined by Dr Isailovic. Dr Isailovic was engaged by the Secretary to provide an opinion on Ms Aberdour’s conditions. Dr Isailovic examined Ms Aberdour on 9 August 2019.
Ms Aberdour submits that little weight should be given to the opinion of Dr Isailovic because her report was formulated 14 months after the Qualification Period. Although Dr Isailovic’s assessment and report were undertaken after the Qualification Period, Dr Isailovic explained that she not only interviewed and examined Ms Aberdour but she also reviewed all of the clinical records of Ms Aberdour’s treating psychiatrist and treating psychologist.[28] These clinical records show what Ms Aberdour reported to her doctors during the Qualification Period and what pharmacological treatment had been recommended and undertaken as at the Qualification Period. Therefore, the Tribunal is satisfied that Dr Isailovic’s opinion may shed light on Ms Aberdour’s condition during the Qualification Period, particularly in circumstances where none of Ms Aberdour’s treating doctors have been called to give evidence. Ms Aberdour has been aware since August 2019 that the Secretary was relying on the opinion of Dr Isailovic. Ms Aberdour had has had ample time to obtain a response to Dr Isailovic’s report from her treating doctors.
[28] Transcript dated 23 July 2020, page 33-34.
In Dr Isailovic’s opinion, Ms Aberdour did not have PTSD because she did not meet the strict criteria for such a diagnosis as set out in DSM IV and DSM V which is the Diagnostic and Statistical Manual of Mental Disorders used by mental health professionals.[29]
[29] Transcript dated 23 July 2020, page 34-35
Dr Isailovic explained to the Tribunal that:
(a)there are strict criteria to be met before a person can be diagnosed with PTSD under DSM IV or DSM V, and Ms Aberdour does not meet that strict criteria; and
(b)even if a person presents with post-traumatic stress symptoms (as was reported by Ms Anderson), this does not mean they have developed a “disorder”.
One of the most important criterium for a diagnosis of PTSD is flashbacks. Dr Isailovic explained that that criteria is “totally missing” for Ms Aberdour. She said:[30]
Her flashbacks that she describes are nothing like the flashbacks that we describe in DSM as a flashback related to the injury because the whole PTSD is about having the memory that cannot be shaken and if someone has the flashbacks and the memory of this event, they can’t move…
what Ms Aberdour actually reported as a flashback is what we call pseudo psychotic symptoms we usually see in personality disorders
[30] Transcript dated 23 July 2020, page 34.
In her report Dr Isailovic opined:
“It appears that ever since the PTSD diagnosis was made she continued to regress in attempts to justify her sick role. There were inconsistencies in the history, such as the reporting of the flashbacks (which as I explained above do not meet the clinical definition of flashbacks), reporting of not grooming due to fear of reflective surfaces in the bathroom, yet reporting of bathroom cleaning being her usual chore. The same goes about inability to exercise due to fear of being abducted and meeting with a friend on a monthly basis in the shopping centre or spending two weeks alone in Japan.”
“In my opinion Ms Aberdour presents with significant regression, on the background of personality vulnerability, and most likely personality disorder. She gives a lifelong history of avoidance. She is getting increasingly dependent on others, including her therapist and her parents. She has a strong illness conviction and is consequently regressing into illness behaviour.”
In addition to the lack of all the necessary criteria, Dr Isailovic says the onset and trajectory of the condition, as reported by Ms Aberdour, does not follow a typical and expected PTSD path. Dr Isailovic says that PTSD is not something that usually has a delayed onset. A particular incident or episode, which Ms Aberdour described occurred when she was 13 or 14, is not something that will bring on PTSD 15 years later. She explained:[31]
Most importantly, there is no such thing as having suddenly the condition 15 years later after something happened. Seeing the psychiatrist or psychologist for a period of time and then reporting after, you know, three years of treatment or two years of treatment, well, by the way, those flashbacks that we’ve been talking about – and there was mentioning of flashbacks but they were like, about the woman yelling about work and as long as the work related injury was actually, you know, the compensation for that was in – going on – all the flashbacks were related to that and then later, much, much later – like we’re talking about years later the flashbacks about the – this particular episode that occurred in – at the age of 13 or 14 – I couldn’t quite get – sometimes she said 13, sometimes she said 14 – then they become an issue… All the literature will also report that there is no such thing as delayed onset of post-traumatic stress disorder.
[31] Transcript dated 23 July 2020, page 35.
Finally, Dr Isailovic explained that most PTSD conditions resolve within 36 months without treatment. If PTSD is continuing it is usually related to the fact that person is having chronic exposure to the triggering event. Again, this is not the case here and Ms Aberdour’s history does not support a finding of PTSD.
In Dr Isailovic’s opinion, Dr Sadasivan’s diagnosis was not justified.
The Tribunal accepts the evidence of Dr Isailovic. No evidence was given by any of Ms Aberdour’s treating medical practitioners and there was no independent expert medical evidence which disagreed with Ms Isailovic’s opinion.
Although Dr Sadasivan reported that Ms Aberdour had PTSD in January 2018 there is no explanation given by Dr Sadasivan for that diagnosis, particularly in circumstances where it was the first occasion she had treated Ms Aberdour.
The Tribunal is not satisfied that the correct diagnosis of Ms Aberdour’s mental health condition during the Qualification Period was PTSD. The Tribunal finds that the correct or preferable diagnosis of Ms Aberdour’s mental health condition during the Qualification Period was GAD.

The parties spent considerable time addressing whether Ms Aberdour did or did not have PTSD during the Qualification Period. Even if the Tribunal had accepted that Ms Aberdour had PTSD, she still would not qualify for the DSP, because she had not had reasonable treatment for her GAD (see Treatment section below). Whether Ms Aberdour qualifies for DSP is not solely dependent on whether she followed her treating doctor’s advice. The issue for the Tribunal is whether the applicant had reasonable treatment for the condition. If there was reasonable treatment available, such as the use of a particular medication, which would have resulted in an improvement in her ability to function, the applicant cannot be said to have a fully treated and stabilised medical condition.
Treatment
Between 2015 and throughout the Qualification Period there is clearly evidence that Ms Aberdour continued to have counselling sessions with her psychologist. At the hearing Ms Aberdour acknowledged that she had improved since being treated by her psychologist and this was reported by Ms Anderson in her report of December 2017.
However, the Secretary contends that Ms Aberdour’s mental health condition was not fully treated and stabilised during the Qualification Period in that she had not had the appropriate pharmacotherapy and had not engaged in a type of cognitive behavioural therapy known as dialectical behavioural therapy (“DBT”).[32]
[32] Transcript dated 23 July 2020, page 39 – 40.
Ms Aberdour says she has been appropriately treated with medication and supplied prescription records for the qualification period.
Ms Aberdour says she complied with the medical care prescribed. This may be true, but Dr Isailovic identified that Ms Aberdour had not taken the appropriate treatment for her condition. In particular, the applicant had not taken Luvox (as prescribed). Ms Aberdour says she did not take Luvox because she was also taking Tramadol at the time and they were incompatible.
Dr Isailovic did not dispute that there is an incompatibility between Luvox and Tramadol but she noted that there is no evidence before the Tribunal to explain why Tramadol was a requirement. Dr Isailovic explained that:[33]
“chronic use of narcotic analgesics is likely contributing to her current lack of motivation and difficulties initiating vocational rehabilitation and social and recreational activities. It would be wise to obtain an expert opinion, such as orthopaedic surgeon, with respect to underlying condition and appropriateness of the use of Tramadol. She would certainly benefit more from using an SSRI…
[33] Exhibit 6, Medical report of Dr Aleksandra Isailovic dated 23 August 2019, page 10.
The Tribunal notes that Dr Sadasivan advised Ms Aberdour of an interaction with Tramadol and requested she reduce the Tramadol dose.[34] That is, despite the incompatibility, Dr Sadasivan clearly considered that treatment of Ms Aberdour’s anxiety should be a priority. Yet, Ms Aberdour did not comply.
[34] Transcript dated 23 July 2020, page 18.
It is unnecessary to refer to Ms Anderson’s and Dr Courts’ reports because they are not psychiatrists. Both Dr Sadasivan and Dr Isailovic agree that the Luvox medication was appropriate treatment for Ms Aberdour’s anxiety.
in terms of pharmacology, Dr Isailovic said Ms Aberdour was prescribed with a medication Seroquel but that is not approved treatment for anxiety disorders and would not have treated “the core symptoms” of Ms Aberdour’s anxiety disorder.
In Dr Isailovic’s opinion:[35]
she’s actually not receiving the core treatment, the core symptoms of an anxiety disorder. She was prescribed Luvox but she could not tolerate it. Now, Luvox is probably one of two or three medications that are difficult to take when you’re taking painkillers [i.e. Tramadol]. All the others you can actually take. So while this could’ve been intolerable we do not say she had a decent therapeutic trial. There is a thing called a decent therapeutic trial before we say that the treatment is - that the condition is treatment resistant…
each of those medications needs to be built up, and it takes for each one at least two to three months depending on the medication to say that her condition does not actually respond to this medication. She had virtually none of them, zero proper treatments of anxiety disorder.
…
So there would be - - -?‑‑‑The only medication that was a core medication, a medication for the core symptoms. So that’s the appropriate medication for the treatment of anxiety, but not at that dose. You know, it needs to be like a hundred to 200; 100 milligrams is minimal.
[35] Transcript dated 23 July 2020, page 36-38, 41.
Dr Isailovic reported that she did not believe that Ms Aberdour is voluntarily exaggerating her symptoms but that:
“Her treatment behaviour is likely her way of taking a control in her life. A combination of medications and dialect behavioural therapy (DBT), which is run by most public hospitals as a group therapy, would be the most appropriate in her case.” Promoting further avoidance and encouraging Ms Aberdour to believe that she has a permanent disabling condition would be quite tragic for her. It would limit her potential. The boredom is a well-known trigger for anxiety and depression. Any further regression and avoidance should be discouraged.
“Most people with generalised anxiety disorder usually have normal functioning in all areas when receiving a treatment”
It is a fully treatable condition and is usually causing minimal or no impairment for work and general functioning…
(emphasis added)
Based on the above it is clear that Ms Aberdour had not had all reasonable, and recommended, treatment for her anxiety disorder.
Conclusion
The medical evidence establishes that Ms Aberdour’s mental health impairment was not permanent during the Qualification Period.
DID MS ABERDOUR HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
As Ms Aberdour did not have any permanent impairments during the Qualification Period, it is not necessary to consider whether Ms Aberdour had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION
Ms Aberdour did not satisfy the Section 94 Requirements during the Qualification Period and therefore did not qualify for DSP at the date of her claim. If her conditions have deteriorated and/or become permanent, Ms Aberdour can make a new DSP application.
DECISION
The decision under review is set aside and replaced with a decision that Ms Aberdour did not qualify for the DSP during the Qualification Period.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 19 October 2020

Dates of hearing: 23 July 2020 and 30 July 2020

Date reserved: 8 September 2020

Advocate for the Applicant: Ms Jones-Bolla

Solicitors for the Applicant: Sparke Helmore Lawyers

Respondent: By telephone

[2020] AATA 4182

19 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Expert Evidence

Appeal

Dates of hearing:	23 July 2020 and 30 July 2020
Date reserved:	8 September 2020
Advocate for the Applicant:	Ms Jones-Bolla
Solicitors for the Applicant:	Sparke Helmore Lawyers
Respondent:	By telephone