Anthony Popov and Secretary, Department of Social Services
[2013] AATA 850
[2013] AATA 850
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5869
Re
Anthony Popov
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 29 November 2013 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Condition not fully diagnosed, treated and stabilised – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
Mr Anthony Popov applied for the disability support pension (DSP) on 18 January 2012. The Secretary decided Mr Popov was unable to satisfy the eligibility criteria in s 94(1) of the Social Security Act 1991, so the application was rejected. Mr Popov has asked the Tribunal to reconsider that decision.
Given the application was made in January 2012, I must focus on the position on that date and in the 13 week period that followed the application. I am not able to consider Mr Popov’s current situation. Mr Popov told the hearing he has been making determined efforts to manage his situation. While acknowledging that progress, I must nonetheless consider the evidence about his health and functioning in the first quarter of last year.
After speaking with Mr Popov and his mother and reviewing the medical and other documentary evidence, I find myself in agreement with the original decision-maker. I explain my reasons below.
There is no doubt Mr Popov suffers from a psychiatric impairment within the meaning of s 94(1)(a). He has been experiencing psychiatric symptoms since he was a youth (he is now 21). It follows he is able to satisfy the first criterion. The second criterion, in s 94(1)(b), is more difficult. That sub-section requires that the person’s impairment attract at least 20 points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). There is no dispute that Table five, which deals with mental health function, is the correct table in this case. But points cannot be awarded under that table unless the decision-maker is satisfied the condition is permanent within the meaning of s 6(3) of the Determination. Section 6(4) says a condition can only be regarded as being permanent if it has been:
(a)Fully diagnosed by an appropriately qualified medical practitioner (which, in the case of a psychiatric condition, means a psychiatrist, or a general practitioner with evidence from a clinical psychologist: see introduction to Table five, reproduced in exhibit one at pp 24ff);
(b)Fully treated, and
(c)Fully stabilised.
Section 6(6) explains a condition cannot be said to be fully stabilised unless the person has undertaken reasonable medical treatment, or there is no expectation of a functional improvement even if reasonable medical treatment is undertaken.
The material before me does not include a diagnosis from an appropriately qualified medical practitioner. The psychiatrist who examined Mr Popov, a Dr Guha, did not offer a formal diagnosis because he said there were additional medical records that were not provided that might offer a more complete clinical picture. While he recorded psychiatric symptoms, he pointedly did not arrive at a diagnosis. The applicant’s general practitioner did offer a diagnosis of schizoaffective disorder and anxiety and panic disorder in a report dated 13 April 2013 (exhibit one at pp 106ff). He referred to Dr Guha’s report in support of his diagnosis, although the report does not appear to go that far. I note the Centrelink Job Capacity Assessors referred to and relied upon the diagnosis of the general practitioner when they compiled their reports. Unfortunately, Dr Novik, the general practitioner, was not appropriately qualified. His diagnosis is not sufficient for present purposes.
The applicant pointed out he had previously been diagnosed by a psychiatrist with a serious psychiatric condition. He explained he had seen Nundah Youth Mental Health Services when he was 17. He did not recall the detailed diagnosis, but his mother was able to give evidence on this point. The applicant’s mother did not have any records of what she was told – the medical records she held in relation to her son had been lost in a recent fire – but she clearly remembered a female psychiatrist explaining Mr Popov was “borderline schizophrenic” and that his condition would progress.
Sadly for the applicant, I do not think a condition of borderline schizophrenia – a description which, on its face, falls short of a formal diagnosis of schizophrenia – is enough, especially in the absence of supporting evidence. But even if I did accept his condition has been properly diagnosed, I still must be satisfied that it has been fully treated and fully stabilised.
Dr Guha recommended supplementing the applicant’s medication with anti-depressants. The doctor also recommended the applicant see a clinical psychologist. The applicant saw a psychiatrist once and a clinical psychologist once. Mr Poppov said he does not want to take anti-depressants because he has had bad experiences with them in the past. The applicant added he has not been using cannabis and he is not abusing alcohol, and he has not for some time. He said he is not getting better, so that should be the end of the discussion.
I accept the applicant may not be improving, but Dr Guha and the applicant’s general practitioner did offer the prospect of some relief from the symptoms if reasonable medical treatment occurred. I accept the applicant is sceptical about that treatment, but he has not taken up those treatment options. I do not think the evidence permits me to conclude the proposed treatment options are either unreasonable or unlikely to offer relief. In the circumstances, I do not think I can conclude the applicant’s conditions are fully treated and fully stabilised. It is therefore impossible to assign any impairment points under Table five, which means the applicant is unable to satisfy the requirement in s 94(1)(b). In those circumstances, there is no need to consider whether the applicant has a continuing inability to work within the meaning of s 94(1)(c).
CONCLUSION
I must focus on the material available which refers to the applicant’s circumstances in the first quarter of 2012, following the date he lodged his application for DSP. A number of the records were not available; if they had been, it might have been possible to reach a firmer view on diagnosis and treatment. The position may now be different, or at least clearer. I cannot say whether the applicant would have more success if he were to submit a fresh claim with the evidence about his current situation. His doctors and others are certainly urging him to do that. That is a matter for him. I must deal with the application before me which deals with the situation early last year. For reasons I have explained, that application cannot succeed. The decision under review must therefore be affirmed.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ...................[Sgd].....................................................
Associate
Dated 29 November 2013
Date of hearing 19 November 2013 Applicant In person Solicitors for the Respondent Department of Human Services
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