Andrew and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1580
•28 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1580
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601123
GENERAL ADMINISTRATIVE DIVISION ) Re GRAEME ANDREW Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date28 June 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E.A. Shanahan
Member
SOCIAL SECURITY – disability support pension – application of 29 March 2006 rejected – application 12 February 2007 granted – was the applicant eligible for the disability support pension on 29 March 2006 – is a retrospective payment of disability support pension attracted.
Social Security Act 1991 s 94
Re Stojanovic and Secretary, Department of Employment and Workplace Relations [2007] AATA 1202
REASONS FOR DECISION
28 June 2007 Miss E.A. Shanahan, Member 1. Mr Andrew lodged a claim for the disability support pension (DSP) with Centrelink on 29 March 2006. Centrelink is the service delivery agent for the Secretary to the Department of Employment and Workplace Relations (the respondent). Based on the medical evidence then before it, Centrelink denied the claim on the basis that the applicant’s impairment was considered temporary or likely to improve within the next two years and therefore did not satisfy s 94 of the Social Security Act 1991 (the Act). An authorised review officer (ARO) affirmed this decision on 14 July 2006. Mr Andrew sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 1 November 2006 the SSAT affirmed the decision. Mr Andrew then applied to the Administrative Appeals Tribunal for review of the SSAT decision on the 23 November 2006.
2. Mr Andrew represented himself and the respondent was represented by Mr T. de Uray, a Centrelink advocate. The Tribunal was provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) and the parties tendered the following Exhibits:
·Report of Dr R Jackson, orthopaedic surgeon, dated 6 May 2002 – Exhibit A1.
·Treating Doctors Report for Centrelink by Dr B. Hill dated 22 February 2007 – Exhibit A2.
·Report of Dr Hill dated 18 June 2007 – Exhibit A3.
·Letter from Mr Andrew dated 11 May 2007 – Exhibit A4.
·Letter from Mr Andrew dated 8 May 2007 – Exhibit A5.
·Report of Dr Pastor dated 1 May 2007 – Exhibit R1.
·Report of Dr M. Greenbaum dated 25 October 2006 – Exhibit R2.
BACKGROUND TO THE APPLICATION
3. Mr Andrew’s resignation from his position with Armaguard, a company that provides armoured car services, took effect on 7 March 2006 (T18, p68 and p60). He had been employed as a security guard with Armaguard for 10 years. Prior to that he worked for the State Bank of Victoria for some 27 years; with his last position being that of a Bank Manager. His employment with the bank ended when the Bank of Victoria was taken over by the Commonwealth Bank of Australia.
4. Mr Andrew made a telephone enquiry to Centrelink on 3 November 2005 and again on 22 November 2005. These were general enquiries regarding disability benefit information. In the course of the telephone conversation he indicated he suffered from a number of medical conditions which impacted on his work capacity to such an extent that he planned to resign from his job in February 2006 (T3, p14). In fact, Mr Andrew delayed his resignation to March 2006 in order to qualify for long service leave (T2, p5).
5. In the claim form lodged for DSP on 29 March 2006 (T4, p15), Mr Andrew listed his medical conditions as major depression, diabetes type 2, hiatus hernia, Crohns disease, glomerulonephritis and injured left knee. He stated that the date at which these conditions had impacted on his work capacity was January 2005. His then current symptoms were upset stomach, cramping, tiredness, insomnia, lethargy and I can’t think clearly (T4).
6. Dr Arthur Bridges, Mr Andrew’s then general practitioner, provided a treating doctor’s report (TDR) (T5) on 29 March 2006 and a further TDR was received on 3 April 2006 (T7). The former provided the diagnoses of major depression (with onset in November of 2005) which had been treated with Lovan 40 milligrams daily; type 2 diabetes treated with oral hypoglycaemics; Crohns disease, which required no treatment and had no functional impact; and reflux oesophagitis controlled with omeprazole. Mr Andrew’s depression was expected to persist for 3 to 24 months and referral to a psychiatrist was being considered. His diabetes type 2 was permanent and likely to remain unchanged. This had been diagnosed in March 2003. The second TDR was the same as the first, except for the additional diagnosis of IgA nephropathy, treated with Coversyl and having no impact on Mr Andrew’s functional capacity.
7. Ms G. Hiscock performed a work capacity assessment on 12 April 2006 (T9, p33). Ms Hiscock said Mr Andrew’s diabetes, Crohns disease and reflux oesophagitis were permanent and his depression was temporary. She found Mr Andrew to have a current capacity to work up to 7 hours per week, rising to 14 hours within 6 months, and 30 plus hours within 6 to 24 months, with on-the-job training and stabilisation of his symptoms. She assessed the Crohns disease, nephropathy and diabetes as having minimal impact on Mr Andrew’s work capacity. She noted that his depression, while severe, had not been diagnosed (by a psychologist or psychiatrist), fully treated or stabilised. Mr Andrew had informed Ms Hiscock that his symptoms of depression commenced in November 2005.
8. On 18 April 2006 Centrelink rejected Mr Andrew’s claim for DSP on the basis that all his medical conditions were temporary.
9. Mr Andrew was subsequently referred to Dr M. Greenbaum, psychiatrist, and first seen by him on 19 May 2006. Dr Greenbaum diagnosed major depression with onset in September 2005. A treatment program of counselling and antidepressant medication was planned, with anticipated improvement. Dr Greenbaum believed Mr Andrew’s depression would adversely affect his functional capacity for 24 months and that the condition would fluctuate in severity.
10. Following Dr Greenbaum’s report, Ms Hiscock re-assessed Mr Andrew with respect to his work capacity (T14, p49). She confirmed her earlier opinion that his depression was not fully treated or stabilised. After Centrelink received the additional medical data, a Centrelink delegate again rejected Mr Andrew’s claim for DSP (T15 and T16). On 14 July 2006 an ARO affirmed the decision. On 1 November 2006 Mr Andrew’s application for review to the SSAT was unsuccessful (T2, p3). The SSAT found the conditions of depression and diabetes were not fully stabilised and treated and therefore they did not attract an impairment rating under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act. The SSAT did consider Mr Andrew’s osteoarthritis of the left knee, but like his nephropathy, reflux oesophagitis and Crohns disease, found that it did not interfere with his level of functioning (T2, p10).
11. Mr Andrew lodged a further claim for DSP on 2 March 2007. This was supported by a detailed TDR dated 22 February 2007, from his new general practitioner, Dr B. Hill. Based on this report, Mr Andrew was assessed as eligible for the DSP and has been receiving this benefit backdated to 12 February 2007.
12. Mr Andrew claims that as his medical conditions are unchanged since he first applied for DSP, he was eligible for the DSP at the time of his first application on 29 March 2006. This is the only issue before the Tribunal: i.e. whether Mr Andrew is entitled to DSP backdated to 29 March 2006.
RELEVANT LEGISLATION
13. Section 94 of the Act deals with qualification for DSP:
94.(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system…
Schedule 1B of the Act sets out the Impairment Tables and the Introduction explains how the Tables are to be used.
EVIDENCE BEFORE THE TRIBUNAL
Mr Andrew
14. Mr Andrew had provided two letters, dated 8 May 2007 (Exhibit A5) and 11 May 2007 (Exhibit A4), in the form of submissions. The content of these is identical. In oral evidence, he affirmed the contents of his original application but was of the opinion that Dr Bridges had underestimated the severity of his medical conditions in his reports (T5 and T7); that Dr Bridges was averse to completing such forms as constituted the reports; and also that Dr Bridges was averse to referring patients for specialist opinion. However he did consider Dr Bridges’ diagnosis of depression to be valid. Mr Andrew believed he had been depressed for many years; but he said he had not informed or discussed this with Dr Bridges as he did not want the condition documented in his medical record as it might impact on his employment.
15. Mr Andrew left Dr Bridges’ care and consulted Dr Hill by telephone in September 2006. He then saw Dr Hill in October 2006. Since that date Mr Andrew has undergone frequent psychological counselling with Dr Hill, with some benefit. Mr Andrew also told the Tribunal that his diabetes was now under control, having been prescribed a new hypoglycaemic agent; and that his past dizzy spells had resolved following the reduction of his Coversyl from 4 milligrams per day to 2.5 milligrams per day.
16. Mr Andrew said that although Dr Greenbaum had instructed that he increase his Lovan dosage to 60 milligrams per day in October 2006, he had not done so, as Dr Greenbaum had not written a prescription to that effect. (Tribunal Note: Mr Andrew was taking 40 milligrams of Lovan daily; that is 2 x 20 milligram tablets and, in fact, the increase to 3 x 20 milligram tablets did not require a further prescription).
17. While Dr Greenbaum had recommended electro-convulsive therapy (ECT) for the treatment of Mr Andrew’s depression, Mr Andrew’s said he had refused such treatment on the advice of his daughters, two of whom are nurses and one a dietician. His father had been treated with ECT after the Second World War without benefit.
18. Mr Andrew was highly critical of the report of Dr Pastor (Senior and Supervised Occupational Health Trainee dated 1 May 2007). Dr Pastor, or perhaps his supervisor Dr Gras, had been asked by Centrelink to assess Mr Andrew’s claim for backdating of his DSP to 29 March 2006. Mr Andrew believed that Dr Pastor’s questioning regarding previous Workcover claims was inappropriate and his attitude negative. He claimed Dr Pastor had told him that he had a markedly enlarged liver. Mr Andrew argued that Dr Pastor could not retrospectively assess his condition in March 2006. However, he argued that Dr Hill could do so as he has all the test results and copies of specialist reports. Mr Andrew had assessed his own impairment at 60 points under the Impairment Tables, including 20 points for alcohol abuse, a condition not originally claimed. Mr Andrew informed the Tribunal that Dr Hill’s report of 18 June 2007 has attracted a fee of $200, which he had paid; and should the Tribunal not find in his favour this money would be wasted. Mr Andrew’s said he provided Dr Hill with his copy of the T-Documents and the report of Dr Pastor to assist Dr Hill in the construction of his report. Mr Andrew was however uncertain if he had provided Dr Hill with the Impairment Tables.
19. Mr Andrew told the Tribunal that he had been diagnosed with osteoarthritis of the left knee giving rise to pain and instability of the knee resulting in falls.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr A. J. Bridges
20. Dr Bridges had provided two TDRs (T5 and T7), both of which have been addressed in the background comments to this application.
Dr M. Greenbaum
21. Dr Greenbaum is Mr Andrew’s treating psychiatrist. Dr Greenbaum’s first report in the form of a TDR was dated 22 May 2006. He diagnosed depression with an onset in September 2005. He also noted suicidal ideation and excessive alcohol intake. Dr Greenbaum suggested counselling, antidepressant medication and ECT. He certified Mr Andrew as being unable to work from 19 May 2006 to 19 August 2007. These dates have been crossed out in the TDR but not initialled by Dr Greenbaum.
22. In his letter of 25 October 2006 (Exhibit R2) Dr Greenbaum reports that Mr Andrew was more depressed after he visited his daughter in Thailand and was suicidal again in September 2006. Dr Greenbaum increased the Lovan dosage to 20 milligrams 3 times daily and advised counselling. He commented that Mr Andrew’s tendency to worry leads to catastrophisation and exacerbates his depression.
Dr R. Jackson, 6 May 2006 (Exhibit A1)
23. Dr Jackson is an Orthopaedic Surgeon. He assessed Mr Andrew at the request of the employer, after Mr Andrew had sustained a fractured rib or ribs on 31 March 2002 (Easter Sunday). Mr Andrew had previously injured his left knee at work on 8 September 2000. Following this injury, Mr John Griffiths, an Orthopaedic Surgeon, had on 18 November 2000 performed a left knee arthroscopy and Mr Andrew was told this showed a bit of inflammation. In March 2001 Mr Griffiths performed an intra-articular injection of steroids as Mr Andrew’s knee had remained sore and swollen.
24. Mr Andrew claimed that while walking to the Melbourne Cricket Ground on 31 March 2002 his left knee gave way and he fell onto the right side of his chest fracturing a rib.
25. When seen by Dr Jackson, Mr Andrew continued to complain of an ache in the left knee at night, creakiness and a tendency for the knee to give way. He also experienced difficulty walking down stairs. While Mr Andrew still had right-sided chest pain this was rapidly improving. In the history given, Mr Andrew declared himself a social drinker and a non-smoker.
26. On examination Dr Jackson found tenderness over the right ribs which he felt would resolve in the very near future. He also detected tenderness over the knee joint line anteromedially on the left, stable knee ligaments and crepitus with pain over the patellofemoral area. Dr Jackson diagnosed degenerative osteoarthritis or arthrosis of the left knee with particular reference to the patellofemoral component. Dr Jackson predicted that this might deteriorate with the passage of time.
Dr N. Pastor – Trainee Occupational Health Physician (Supervised by Dr D. Gras) Report dated 1 May 2007 (Exhibit R1)
27. The respondent arranged for Mr Andrew to be seen by an occupational health physician on 18 April 2007 in order to assess whether Mr Andrew had an impairment rating of 20 points as at 29 March 2006.
28. Dr Pastor’s report is thorough and very detailed. Only the salient reports are repeated here. Mr Andrew gave a history consistent with depression commencing in September 2005 after he had had a miserable time after a holiday in Bali. (The Tribunal was under the impression the holiday in Bali occurred in September 2006). Mr Andrew felt he could not face work and told his wife he wanted a separation. Mr Andrew said he consulted a doctor (presumably Dr Bridges) regarding what he himself thought was a breakdown in October 2005. Although he had suffered lowered mood, sleeping difficulties and anxiety attacks for many years he had not sought medical attention for these symptoms. Mr Andrew began having suicidal thoughts in mid -2005; and he was prescribed anti‑depressants in November 2005. Mr Andrew did not see a psychiatrist until May 2006. Dr Pastor obtained a history of excessive alcohol intake dating from Mr Andrew’s early forties.
29. Dr Pastor records that Mr Andrew’s diabetes was diagnosed in 1998, his nephropathy in 2000, hiatus hernia with reflux oesophagitis in 1998 and Crohns disease in 1996. At the time of consultation, Mr Andrew reported two months of severe diarrhoea, some rectal bleeding, abdominal pain and urgency of defecation. His bowel symptoms had fluctuated in the past, but he had not required Prednisolone for several years.
30. Mr Andrew gave Dr Pastor a history of smoking half a packet of Camel cigarettes per day from age 14 to 38. Since resigning from his job Mr Andrew has spent his time doing household chores, shopping, housework and cooking. His wife works 38 hours per week. Mr Andrew said he gardens for short periods of up to 30 minutes; and he walks for 10 to 20 minutes per day on average but occasionally for up to 50 minutes. In December 2006 Mr Andrew commenced volunteer work in a community visitor’s scheme and visits an elderly disabled man for a couple of hours a day, two to three times per week.
31. Dr Pastor’s physical examination of Mr Andrew revealed obesity (BMI 32), crepitus over the left knee, mild epigastric tenderness but no organ enlargement (Tribunal comment ‑ particularly no enlarged liver). Otherwise all systems examination was normal. Mental examination showed some depressed affect although Mr Andrew described how he enjoyed his volunteer work and the time spent with his grandchildren.
32. Dr Pastor assessed Mr Andrew in accordance with the Impairment Tables in Schedule 1B of the Act. He gave Mr Andrew’s Crohns disease an impairment rating of 10 points (as at 18 April 2007). However, all Mr Andrew’s other conditions were confirmed as being temporary as of 29 March 2006. Therefore they did not attract an impairment rating. Dr Pastor assessed Mr Andrew’s depression as having been diagnosed, treated and theoretically stabilised, and gave it an impairment rating of 10 points as of 18 April 2007.
Dr B. Hill
33. Dr Hill provided a TDR dated 22 February 2007 (Exhibit A2). Dr Hill first saw Mr Andrew in October 2006. His assessment was based on his observations from that date and access to past records and reports. He recorded the date of onset of Mr Andrew’s depressive symptoms as January 2005 but was unsure of the date of diagnosis. Dr Hill detailed the symptoms of Mr Andrew’s depression as in the reports of Dr Greenbaum and Dr Pastor. The symptoms related to Crohns disease are also the same as reported by Dr Pastor.
34. Dr Hill provided a report (unaddressed, Exhibit A3) dated 18 June 2007 in which he addressed the significant overlap in Mr Andrew’s conditions and criticised the Impairment Tables approach to the rating of diseases because it concentrated on impairment in isolation when the impairment is often more than the sum of its contributions.
35. Dr Hill argued that Mr Andrew’s depression had been present for years and was permanent when he applied for the DSP on 29 March 2006 even though he had not then been seen by a psychiatrist. He said that Dr Greenbaum’s continuance of Lovan 40 milligrams from 19 May 2006 suggested that this treatment was appropriate and the 4 month delay in review by Dr Greenbaum supported the argument that the depression was stable. Dr Hill retrospectively assigned 10 points for Mr Andrew’s depression, although he believed the correct rating was closer to 20. He also assigned 5 points, very probably closer to 20 for Mr Andrew’s heavy alcohol use and 10 points for the Crohns disease.
SUBMISSIONS
The Applicant
36. Mr Andrew submitted that Dr Hill’s retrospective assessment of his level of impairment was to be preferred over any other; and that Dr Bridges contemporaneous assessment was incorrect.
The Respondent
37. Mr de Uray relied on the medical evidence and work capacity assessments as considered by the SSAT. The respondent had obtained a report from Dr Pastor in April 2007 to address Mr Andrew’s claim that his DSP eligibility should be backdated to 29 March 2006. As previously stated, Dr Pastor assigned 10 impairment points for Crohns disease with all other medical conditions assessed as temporary and therefore not attracting an impairment rating in March 2006. Mr de Uray relied on the Tribunal’s analysis of the Impairment Tables and the Introduction to Schedule 1B by Senior Member P. Taylor in Re Stojanovic and Secretary, Department of Employment and Workplace Relations [2007] AATA 1202.
TRIBUNAL’S DELIBERATIONS
38. There is conflicting data in the medical reports with respect to the date of onset of Mr Andrew’s depression. The various doctors concerned have relied on the history given to them by Mr Andrew. Mr Andrew claims his symptoms were present for many years. Dr Bridges stated the date of onset of depression was October 2005 and Dr Greenbaum cited this date as being January 2005. Dr Bridges commenced treating Mr Andrew in November 2005. Mr Andrew did not see a psychiatrist until May 2006, after his original DSP claim was rejected. Dr Greenbaum recommended several forms of treatment and continued Lovan 40 milligrams daily in the interim. Mr Andrew, after discussion with his family, rejected the alternative treatment recommended and did not return to see Dr Greenbaum until October 2006, at which time Dr Greenbaum increased his anti-depressive medication. Mr Andrew did not take the increased dosage. At no time did Mr Andrew claim excess alcohol intake or alcohol abuse as a medical condition contributing to his inability to work. His Crohns disease had been stable for some years and required no treatment but a severe bout of pain and altered bowel function occurred during a holiday in Bali and required hospitalisation. Mr Andrew’s diabetes has stabilised with the introduction of oral Avandia. His episodes of dizziness have ceased with the reduction of his Coversyl dosage from 4 milligrams per day to 2.5 milligrams per day.
39. The medical conditions impacting on Mr Andrew’s functional capacity are the major depressive disorder and his Crohns disease; both of which have been assigned 10 impairment points as of 12 February 2007. Dr Greenbaum regarded Mr Andrew’s excessive alcohol intake as self-medication for his depression. The Tribunal notes that Mr Andrew commenced drinking at the age of 38, drank to excess, but only drank in the evenings when not working. There was no evidence before the Tribunal that his alcohol intake impacted on his ability to work.
40. Mr Andrew made enquiries of Centrelink regarding disability-based financial assistance on 3 November 2005, some 4 months before he resigned from his job. He was declared ineligible for Newstart Allowance based on his wife’s earnings of $33,600 per annum (T8).
41. The Tribunal does not accept Dr Hill’s retrospective analysis of Mr Andrew’s eligibility for DSP on 29 March 2006, as he did not see Mr Andrew until October 2006. Dr Hill’s detailed TDR of 22 February 2007 reports symptoms already reported by others and already considered; in particular, Dr Greenbaum’s report of October 2006 and his advice that Mr Andrew did not accept. Dr Hill’s assessment of Mr Andrew’s Crohns disease is the same as that of Dr Pastor.
42. The Tribunal notes that Mr Andrew did not ask his treating endocrinologist, gastroenterologist, orthopaedic surgeon and renal physician to provide reports for the hearing. Based on the medical reports that Mr Andrew has provided, the Tribunal decides that Mr Andrew’s various conditions did not rate the necessary 20 impairment points required for DSP on 29 March 2006. Even had they had done so, Mr Andrew retained a capacity for work, as assessed on 12 April 2006 and 14 June 2006 (T9 and T14); which means that he would have failed to meet the requirement of s 94(1)(c)(i) of the Act. In particular, his major depressive disorder, whatever its date of onset and diagnosis, had not been fully treated or stabilised in Dr Greenbaum’s opinion; nor had Mr Andrew followed the prescribed treatment recommended by Dr Greenbaum in late September 2006.
43. As of 29 March 2006, Mr Andrew failed to meet s 94(1)(b) and s 94 (1)(c) of the Act. Therefore, he did not qualify for DSP at that time. Accordingly, the Tribunal affirms the decision under review.
I certify that the forty‑three [43] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDate of Hearing: 28 June 2007
Date of Decision: 28 June 2007
Advocate for the Applicant: Self-represented
Advocate for the Respondent: Mr T. de Uray, Centrelink Legal Services Branch
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