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

[2010] AATA 603

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 603

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1188

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK ASHWORTH

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date13 August 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd].............................

Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Physical, intellectual or psychiatric impairments suffered by applicant – Permanency of conditions – Appropriate allocation of rating ––– Decision under review affirmed. 

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) s 4, Sch 2

Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788

REASONS FOR DECISION

13 August 2010 Dr M Denovan, Member    

INTRODUCTION

1.          Mr Mark Ashworth, the applicant, suffers from a number of significant medical problems, including: daily headaches, stress, anger management, and insomnia.  He considers that all of these medical problems started in January 2008 when he contracted an infection, Pseudomonas Sepsis.

2.          Mr Ashworth contacted Centrelink and claimed disability support pension (DSP) on 27 July 2009.  He lodged a claim form on 4 August 2009.  On 21 September 2009 Centrelink made a decision to reject his claim.

3.          An authorised review officer affirmed the decision[1], as did the Social Security Appeals Tribunal (SSAT) on 18 February 2010.

[1] on 31 December 2009

4.          The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 25 March 2010.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. Under Schedule 2, item 4(1) of the Social Security (Administration) Act 1999 (Cth) an applicant must qualify for DSP on the day on which he/she made the claim, or within 13 weeks. In this case the claim period was from 27 July 2009 until 26 October 2009.

6. The criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). To qualify:

·the applicant must have a physical, intellectual or psychiatric impairment; and,

·the applicant’s impairment must have been of 20 points or more under the Impairment Tables; and,

·the applicant must have a continuing inability to work, either with or without intervention, for at least two years from the date of claim.

7. Before an impairment rating can be assigned under the Impairment Tables it is necessary to determine whether Mr Ashworth’s impairments arise from a condition or conditions that has been investigated, treated and stabilised. It is also necessary that that the condition is regarded as permanent under the legislation (Schedule 1B of the Act).

Pursuant to Schedule 1B of the Act:

For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  …

The condition must be considered to be permanent.   Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of 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.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

8.          Mr Nolan, for the respondent, accepts that Mr Ashworth has physical and psychiatric impairments.  He contends that none of the conditions from which Mr Ashworth suffers can be regarded as diagnosed, treated and stabilised.

9. The issues that I must decide are whether Mr Ashworth had an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act, and if so, whether he had a continuing inability to work.

Background

10.        Mr Ashworth told me that prior to January 2008 he was always healthy.  Then, one day in January 2008 he was at work and became very ill.  He was treated at Caboolture hospital, sent home on the same day, only to be readmitted on the following day.  He believes he stayed in hospital for 22 days.  He was diagnosed with blood poisoning, the result of an infection by an organism called pseudomonas.  The doctors could not work out the reason he became infected.

11.        Mr Ashworth told me his symptoms at that time; headaches, insomnia, low energy, difficulty concentrating, and stress have never abated.

12.        Medical illness has not been the only problem that has plagued Mr Ashworth in recent times.  Previously successful in business, Mr Ashworth found himself caught by the recent downturn in the real estate market.  He owned two properties, one at Tewantin and the other at the Glass House Mountains.  His former wife and children were living in the Glass House Mountains property.  Mr Ashworth suffered considerable stress when he was forced to evict them from the property and sell for, what he considers to be $300,000 less than the real value of the property.

13.        During the same period Mr Ashworth was burdened by the stress of a custody battle that involved his granddaughter.

14.        In two reports dated 4 August 2009, Mr Ashworth’s general practitioner, Dr McKibbin, provided the diagnoses of pseudomonas sepsis and stress/anxiety.

Does Mr Ashworth have an impairment rating of at least 20 points? 

15.        It is first necessary to consider whether Mr Ashworth’s conditions have been fully diagnosed and documented.  A copy of the Caboolture Hospital notes[2] is in evidence.  These indicate that Mr Ashworth presented on 25 January 2008 and was admitted on 26 January 2008 with a diagnosis of pseudomonas.  A number of tests were performed including a chest x-ray, abdominal ultrasound, and echocardiogram.  No source of the infection was identified and Mr Ashworth was discharged on 11 February 2008.  The notes do not indicate whether or not Mr Ashworth was still experiencing symptoms at the time of discharge.

[2] Exhibit 1, T12/76-91

16.        In his August 2009 reports, Dr McKibbin stated that both pseudomonas sepsis and stress/anxiety had an onset of 3 January 2008.  Dr McKibbin described the current symptoms due to pseudomonas as “headaches, joint pains, insomnia stress and poor energy”, and those due to stress/anxiety as “can’t settle, insomnia, anger management issues, poor decision making, social withdrawal, headaches and neck pain”.

17.        Dr McKibbin provided a further report which was faxed to the respondent’s solicitors on 31 May 2010[3].  In that report, prepared in response to questions from the respondent’s solicitors, Dr McKibbin stated that pseudomonas sepsis is no longer active and, that it resolved on approximately 1 November 2009.  Mr Nolan contended that these comments support a finding that the condition was correctly regarded as temporary in the decision under review.

[3] Exhibit 2

18.        In the same report Dr McKibbin stated that the applicant has ongoing problems with poor stamina, anger management, social withdrawal and loss of self esteem.  Dr McKibbin stated the insomnia, stress and headaches have gotten worse since pseudomonas, and therefore are presumed to be connected.  He stated that it is impossible to know if the daily headaches are anxiety/post pseudomonas related. 

19.        Dr McKibbin’s reports are brief and contain very little detail.  I understand him to be saying that whilst pseudomonas sepsis has resolved, Mr Ashworth suffers impairments that are secondary to that condition which have not resolved.  His report indicates that insomnia and stress are sequelae to pseudomonas sepsis.  Headaches are either a direct sequelae to pseudomonas, or secondary to the stress sequelae.

20.        Pseudomonas sepsis has resolved and is not a condition that can be regarded as permanent and assigned a rating.  This is not necessarily a bar to his claim.  Significantly, Mr Ashworth has consistently complained of insomnia, stress and headaches.  

21.        In the case of Bugno[4] at [38] the AAT considered that subparagraph 94(1)(b) “does not require the diagnosis of a specific disease, but does require [the] diagnosis and documentation of the nature of impairment”.

[4] Bungo and Secretary, Department of Employment and Workplace Relations [2005] AATA 788

22.        The May 2010 report of Dr McKibbin indicates the conditions of insomnia, stress and headaches have been diagnosed and documented.  It is not clear whether the conditions were fully diagnosed and documented within the claim period.  There is no medical evidence to this effect.

23.        In order to be allocated a rating, conditions must also be fully treated and stabilised.  In considering whether a condition has been fully treated and stabilised, I must have regard to :

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future; and,

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

24.        The Secretary contends that neither of Mr Ashworth’s conditions has been fully and reasonably treated.

25.        The Secretary relies on the report of Ms Bott.  She prepared a Job Capacity Assessment Report (“JCA”) on 11 August 2009.  Ms Bott’s professional discipline is not clear. It is described as “other”.  Ms Bott contacted Dr McKibbin on 14 August 2009.  In her report[5] she stated:

“Dr McKibbin reported he is uncertain about the client’s ability to return to work, however supported the decision to defer a referral to VRS and is hopeful that the client will be able to return to work within the next 2 years.  Dr McKibbin reported he will continue to encourage the client to seek psychotherapy for assistance with management of his condition.”

[5] Exhibit 1, T7/68

Ms Bott concluded that with rest and intervention from a counsellor Mr Ashworth’s stress was likely to improve over a six month period.

26.        Mr Ashworth told me that he has asked on many occasions for a referral for treatment to a specialist.  He has been told that little is known about pseudomonas infection but that it is a tropical disease, is relatively rare in this part of the world and, that there is no specialist that Dr McKibbin knows of that he could be referred to.

27.        Mr Ashworth told me that he had tried antidepressants but they made him feel scared and like a zombie.  He said that he does not recall Dr McKibbin suggesting psychotherapy or treatment by a psychologist.  He would be happy for Dr McKibbin to recommended such treatment, however he is of the opinion that such therapy would not assist him, as he cannot see how talking about his problems would help.

28.        I place no weight on Ms Bott’s report. Her conclusions are not supported by medical evidence.  In none of his reports does Dr McKibbin suggest that psychotherapy, counselling by a psychologist or a psychiatrist was either desirable or appropriate.  Ms Bott’s record of conversation with Dr McKibbin is at odds with the evidence of Mr Ashworth, who I found to be a credible witness.

29.        The JCA prepared by Janet Henderson, an Occupational Therapist is of little value as she did not contact Dr McKibbin, and relied on Ms Bott’s record of conversation with him.

30.        In his August 2009 reports, Dr McKibbin stated that Mr Ashworth was currently being treated for his stress/anxiety with diazepam and nitrazepam, and that future planned treatment was the same.  I accept that Mr Ashworth has received all reasonable treatment for his conditions. 

31.        For a condition to be regarded as fully stabilised, it must be unlikely that there will be any significant functional improvement within the next two years.  Dr McKibbin indicated that both of Mr Ashworth’s conditions would likely impact on his capacity to function for 3-24 months.  Dr McKibbin’s report of May 2010 does not indicate otherwise.  Because Dr McKibbin has indicated that there is likely to be a significant functional improvement within the next two years, neither of Mr Ashworth’s conditions can be regarded as fully stabilised during the claim period.

32.        For these reasons I find that during the claim period, Mr Ashworth did not have any conditions that can be allocated a rating. Because he does not have 20 impairment points, I make no finding as to his capacity to work during the relevant period. 

33.        It was very unfortunate that the Secretary did not arrange for Dr McKibbin to give evidence.  Mr Nolan told me that Dr McKibbin was not contacted until the morning of the hearing, and that he had a full schedule.  Mr Nolan said he thought Mr Ashworth might have made Dr McKibbin available, I am not sure why, he conceded that the Secretary had made no such request to Mr Ashworth.

FINDINGS OF THE TRIBUNAL

34.        The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .......................[Sgd]......................................................
  Kate Slack, Research Associate

Date/s of Hearing  22 July 2010
Date of Decision  13 August 2010
The Applicant was self represented
Solicitor for the Respondent     Mr Phil Nolan, Sparke Helmore