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

[2015] AATA 763

Barr; Secretary, Department of Social Services and (Social services second review) [2015] AATA 763 (30 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/1685
Re	Secretary, Department of Social Services
APPLICANT
And	Steven Barr
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	30 September 2015
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that during the claim period Mr Barr did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

.....................[sgd]................................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether the respondent has a continuing inability to work – whether respondent had a severe impairment – decision set aside

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr Ion Alexander, Member

30 September 2015

1. Mr Barr has not been employed since he suffered a myocardial infarction in 1987 and was granted an invalid pension. He remained on the invalid pension for several years until his wife’s income was such that he no longer qualified.

2. In 2006 Mr Barr suffered two cerebrovascular accidents (CVAs or “strokes”) and after a period of more than 12 months of recovery he was left with some physical and possible cognitive impairment.

3. On 1 September 2013 Mrs Barr was retrenched with a lump sum payment.

4. Thereafter, Mr Barr was apparently advised by a Centrelink officer to apply for disability support pension (“DSP”) so on 20 September 2013 he lodged a claim for DSP on the basis that he suffered medical conditions which were having an impact on his ability to function.

5. I note that Mrs Barr returned to full employment in November 2013.

6. Mr Barr’s claim was rejected by Centrelink, both initially and on internal review on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(c) of the Act, in that he did not have a continuing inability to work because he had not actively participated in a program of support.

7. On 21 February 2014 the Social Security Appeals Tribunal (“SSAT”) decided that Mr Barr’s combined rating under the Impairment Tables was 30 points, with 20 points under Table 7 – Brain Function, and had a continuing inability to work so that he qualified for DSP.

8. In these proceedings the Secretary, Department of Social Services, the Applicant, seeks review of the SSAT’s decision.

9. At the hearing Mr Barr, the Respondent, was self-represented, assisted by his wife, and was able to give oral evidence.

   ISSUES

10. In order to qualify for DSP, Mr Barr must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 20 September 2013 and 20 December 2013 (the claim period).

11. Section 94(1) of the Act provides that a person is qualified for DSP 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;

    …

12. The Applicant concedes, and the Tribunal accepts, that Mr Barr suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his 2013 claim for DSP.

13. In a Centrelink Medical Report dated 19 September 2013 Dr Kek, the Respondent’s general practitioner since 2008, lists “depression/anxiety,” and “2 CVAs” as medical conditions causing significant functional impact.

14. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) specifies that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

15. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

    ·fully treated (paragraph 6(4)(b)), and

    ·fully stabilised (paragraph 6(4)(c)), and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

16. The Introduction to each relevant Table states that “Self-report of symptoms alone is insufficient” and “There must be corroborating evidence of the person’s impairment”.

17. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

18. The Applicant accepts that during the claim period Mr Barr suffered multiple impairments as a result of the CVAs he suffered in 2006.

19. Relevantly, subsection 10(3) of the Impairment Determination provides that “Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table” and provides a specific example of “a stroke” that may affect different functions and need to be assessed under a number of different Tables.

20. Also subsection 10(4) provides that “When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.”

21. The Applicant submits that as a result of his strokes Mr Barr had a rating of 10 points under Table 7 for brain function, 10 points under Table 1 for physical exertion and stamina and 5 points under Table 2 for upper limb function.

22. The Applicant submits and the Tribunal agrees that during the claim period Mr Barr’s mental health condition was not permanent for the purpose of the Impairment Determination because the condition had not been diagnosed by a Psychiatrist or confirmed by a Clinical Psychologist as required by Table 5.

23. It follows that there is agreement, that during the claim period, Mr Barr had a combined rating of at least 25 points under multiple Impairment Tables so that he satisfied section 94(1)(b) of the Act.

24. The Applicant contends, however, that during the claim period Mr Barr did not satisfy section 94(1)(c) of the Act on the basis that he did not have a continuing inability to work.

25. Section 94(2) of the Act provided that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and

    …

    [Emphasis added.]

26. The Applicant submits that during the claim period Mr Barr did not have a “severe impairment” within the meaning of subsection (3B) and as there is no dispute that he had not actively participated in a program of support within the meaning of subsection (3C) he did not have “a continuing inability to work” and could not satisfy section 94(1)(c) of the Act.

27. Section 94(3B) provides that “A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.

28. Mr Barr submits that during the claim period his impairment in respect of brain function was a “severe impairment” and that a rating of 20 points under Table 7 is warranted.

29. The Applicant submits that the preponderance of evidence, particularly the corroborative medical evidence, is consistent with the descriptors for 10 points (moderate functional impact) in Table 7, but not 20 points.

30. Therefore, the definitive issue in this matter is whether during the claim period Mr Barr’s impairment in respect of brain function warranted a rating of 20 points or more under Table 7.

    MR BARR’S EVIDENCE

31. Mr Barr told the Tribunal he cares for himself on a daily basis while his wife is at work. He is able to shower himself and prepare his own breakfast and lunch. He requires some assistance with dressing and doing up buttons because of weakness in his left arm. During the day he generally watches television and has several favourite shows which are pre-recorded and likes to read Reader’s Digest. His wife leaves him notes for things to do such as making doctor’s appointments. He regularly takes one of the dogs for a walk “around the block”.

32. In 2012 Mr Barr he was able to get a driver’s licence, albeit after numerous attempts, and is able to drive short distances. He regularly picks up his wife from the railway station in the evening which is about a three kilometre round trip and drives his wife to the shopping centre on weekends. He explained that he limits his driving to short familiar trips because he tends to get confused and has no sense of direction.

33. Mr Barr told the Tribunal he has a poor memory and has suffered from depression and anxiety for several years. However, he indicated that he would be interested in doing some form of rehabilitation and thought that he could cope with up to 8 hours per week.

    MEDICAL EVIDENCE

34. In his report of 19 September 2013 Dr Kek lists “depression/anxiety” as a medical condition that causes significant functional impact with a date of diagnosis as 17 June 2011. Current treatment is noted as Pristiq, an antidepressant medication, and impact on ability to function is described as “poor endurance, concentration, attention span”.

35. Dr Kek lists “2 CVAs” as a second medical condition that causes significant functional impact with a date of onset as 2006. Current treatment is noted as “none, daily exercises eg walking” and impact on ability to function is described as “poor endurance, concentration and attention”.

36. In a report dated 21 July 2014 Associate Professor Krishnan, consultant neurologist, notes that Mr Barr reported difficulties with left-sided movements due to ongoing weakness, impairments of balance, problems with memory, difficulties with activities of daily living and excessive sleeping. His wife mentioned that “she has to write down everything for him before she goes to work to ensure that he eats well and that he looks after himself”.

37. Professor Krishnan notes that Mr Barr has a “background of depression” which is being treated by his GP.

38. On physical examination, Professor Krishnan notes that Mr Barr was able to walk into the examination room unaided, but was unable to get onto the examination couch. He notes that Mr Barr had a blunted affect, normal speech and was able to understand commands without any difficulty. Formal neuropsychological assessment was not undertaken.

39. On general neurological examination, Professor Krishnan noted “mild left-sided hemiparesis that involved the left upper limb more than the lower limb” and “reduction in light touch sensation on the left side compared to his right” with no other abnormalities.

40. Professor Krishnan concludes that Mr Barr’s most significant impairment appears to be physical weakness on the left side but suggests that cognitive impairment is likely and that formal neuropsychological assessment would be required to determine the relative contributions of stoke and coexistent depression. He recommended a formal psychiatric opinion with neuropsychological assessment to document the severity of the depression.

41. Professor Krishnan recommended a rating of 10 points under Table 7 on the basis that Mr Barr “had some difficulty understanding complex commands on today’s examination.”

42. On 19 February 2015 Mr Barr was seen in the Macquarie University Psychology Clinic for neuropsychological assessment in order to confirm any brain impairment resulting from his past strokes.

43. In a report dated 23 February 2015 Ms Watt, clinical neuropsychologist, and Ms Pawela, provisional psychologist, note that Mr Barr reported that “his cognitive functioning had been declining over the past eight years, since he suffered two cerebrovascular accidents (CVAs) within three days of each other”.

44. Mr Barr reported numerous difficulties including being very forgetful, having particular difficulty with new learning and short-term memory, having attentional difficulties, finding it hard to concentrate on previously enjoyed tasks, organisational difficulties so that his wife helps him to plan and organise his day and not being able to handle unexpected events. In terms of his mood, Mr Barr reported difficulties initiating tasks as he lacks motivation.

45. The report notes that Mr Barr “presented with a blunted affect and while largely cooperative, appeared unmotivated to engage during the assessment”. It was suggested to Mr Barr that testing be postponed until his motivation levels improve with further treatment of this mood. Mr Barr was reluctant to discontinue the assessment and the assessors noted that the current findings are likely to be an underestimate of his current cognitive functioning.

46. The assessment results revealed a low level of performance in most of the functions measured. In particular, on a self-report measure of current mood and level of psychological functioning “Mr Barr endorsed extremely severe levels of depression, stress, and anxiety”.

47. Summary and impressions were reported as follows:

    A review of Mr Barr’s medical background suggests significant cerebral insult. However, in light of observations of Mr Barr’s questionable effort on many measures administered and his suboptimal performance on formal measures of effort and motivation - together with his current extremely severe level of depression, anxiety and stress - the validity of the obtained neuropsychological assessment results is questionable. As such, we are unable to comment accurately on Mr Barr’s level of current cognitive functioning and neuropsychological impact of his previous CVAs present. Mr Barr’s mood state, particularly his extremely severe depressive symptoms, is of concern, and may render him inappropriate for the workforce at present. It is therefore recommended that Mr Barr undergo further assessment and treatment of his mood…

48. At the hearing Professor Krishnan gave evidence by telephone. He confirmed the opinions expressed in his written report and emphasised the difficulties in the assessment of cognitive impairment due to cerebral injury when there is coexisting severe depression. He agreed with the recommendations expressed in the neuropsychology report and explained that the only practical way to establish whether Mr Barr’s claimed cognitive impairment is due to the “strokes” is to have a comprehensive psychiatric evaluation in order to determine whether his depression is fully treated and stabilised. Once it is determined that any cognitive impairment is unlikely to be due to depression then a repeat neuropsychological assessment should be able to provide more accurate assessment of impairment due to his cerebral injury.

    OTHER EVIDENCE

49. In a Job Capacity Assessment report submitted on 20 March 2014 the assessor, who performed the assessment based on documents contained in Mr Barr’s Centrelink file, notes that Dr Kek, was contacted on 14 March 2014 to request further documentation in respect of Mr Barr’s CVAs.

50. Dr Kek is reported as indicating that he was unable to provide any additional documentary evidence and in further discussion in respect of Mr Barr’s functional impairment indicated that he had “some physical endurance limitations but maintains good functioning with his left limbs, the capacity to walk for 1 hour and enough physical endurance to complete most moderate to light activities of daily living.” Dr Kek is also said to have reported that “Mr Barr had not reported any significant cognitive functional impacts as a result of his previous CVAs and as such was not under the care of a neurologist” and indicated that based on medical evidence available to him he did not believe Mr Barr was suitable for full-time work but had the capacity for part-time work.

    CONSIDERATION

51. Mr Barr claims that he suffers a severe impairment of brain function as a result of two CVAs in 2006 and warrants a rating of at least 20 points under Table 7.

52. I am satisfied that there is sufficient evidence before the Tribunal that Mr Barr does suffer some impairment of brain function, that is cognitive or neurological impairment, and that his self-report of symptoms suggests a moderate to severe impairment.

53. The difficulty for Mr Barr is that the medical evidence does not entirely support his claim and raises questions about the cause of his impairment as well as the severity of the impairment.

54. Dr Kek’s report of 19 September 2013 is unhelpful in that it identifies two medical conditions, “anxiety/depression” and “2 CVAs”, that are claimed to cause significant impact on Mr Barr’s ability to function but provides insufficient details to make any reasonable assessment of functional impairment with reference to the Impairment Tables. In fact, the details for both conditions are not only incomplete but in respect to the impact on the ability to function they are described in almost identical terms.

55. When interviewed on 14 March 2014 Dr Kek is said to have told the assessor that Mr Barr had not reported any significant cognitive functional impacts as a result of his previous CVAs, and also described functional capacities inconsistent with Mr Barr’s evidence to the Tribunal.

56. There is no corroborating evidence to support a rating of 20 points or more under Table 7. Professor Krishnan suggested an impairment rating of 10 points under Table 7 based on his examination.

57. Furthermore, the evidence of Professor Krishnan and the neuropsychology report suggests that Mr Barr suffers significant depression and that any current assessment of cognitive impairment due to his cerebral injury is likely to be unreliable.

58. In my view, the evidence in respect of Mr Barr’s cognitive impairment is incomplete and inconsistent and does not provide a reliable assessment of his impairment during the claim period.

59. However, on consideration of Mr Barr’s oral evidence and the recommendation of Professor Krishnan, I accept that during the claim period he had a rating of 10 points under Table 7. I am not persuaded that there is sufficient corroborative evidence to support a conclusion that during the claim period Mr Barr’s cognitive impairment warranted a rating of 20 points or more.

60. It follows that during the claim period Mr Barr did not have a severe impairment within the meaning of s 94(3B) of the Act and as he had not actively participated in a program of support he did not have a continuing inability to work so that he did not satisfy s 94(c) of the Act and did not qualify for DSP.

    DECISION

61. The decision under review is set aside and in substitution the Tribunal decides that during the claim period Mr Barr did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

...................[sgd]..................................................

Associate

Dated 30 September 2015

Date of hearing	31 August 2015
Solicitors for the Applicant	Dr S Thompson, Sparke Helmore
Respondent	In person with assistance from his wife