Bohm and Secretary, Department of Family and Community Services

[2005] AATA 790

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/188

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHERYL BOHM

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date9 August 2005          

PlaceBrisbane

Decision The Tribunal sets aside the decision under review pursuant to s43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 and remits the matter for reconsideration by the respondent in accordance with directions that a report be obtained by a psychiatrist on the applicant’s psychiatric condition and that the applicant’s lung function be assessed in regard to her asthmatic/bronchial condition.

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

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – Introduction to Impairment Tables in Schedule 1B - diagnosis of physical or psychiatric impairment.

Social Security Act 1991 ss 94, Sch 1B

WRITTEN REASONS FOR ORAL DECISION

18 August 2005 Ms M J Carstairs, Member

1.      This is an application by Sheryl Bohm (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) dated 14 March 2005 which affirmed a Centrelink decision dated 1 February 2005 to reject the applicant’s claim for disability support pension.

2.      At the hearing on 9 August 2005 the applicant represented herself.  The respondent was represented by its advocate, Ms S Oliver.  The Tribunal gave oral reasons for decision at the hearing.  On 10 August 2005 the respondent requested written reasons for the decision and these reasons now answer that request. 

3.      The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibit R1.

BACKGROUND

4.      The applicant is aged fifty-six.  She worked as a public servant in the Department of Social Security (now Centrelink) between 1988 and 1996.

5.      About 2000 the applicant’s husband received a lump sum settlement of a compensation claim and part of the money was used to purchase a business, a gift shop at Montville in Queensland.  That business was not successful, the applicant explaining that after September 11, tourism was affected generally and Montville died overnight.  She ceased running the business on or about July 2004.

6.      In December 2004 the applicant claimed disability support pension.  Her claim was rejected on 1 February 2005; and again when reviewed by an Authorised Review Officer (ARO) on 8 February 2005 and by the SSAT on 14 March 2005.  The applicant appealed to this Tribunal on 30 March 2005. 

7.      The issues for the Tribunal are whether the applicant has a physical intellectual or psychiatric impairment that rates 20 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (the Act) and whether as a result of impairment she has a continuing inability to work.

EVIDENCE

8.      In her claim form dated 24 December 2004 (T4), the applicant set out her conditions as:

I have an anxiety disorder & panic attacks & accompanying symptoms, & ongoing stress

.         Elevated blood pressure & elevated cholesterol

.         Stress related reflux

.         Asthma tendency/breathlessness at times.

.         Some bone & vertebrae degeneration

.         Occasional Oesophageal spasms – (Pain in Chest)

.         Arthritis in several fingers

9.      The applicant also referred to hospitalisation in August 2004 for a collapsed lung, pleurisy and pneumonia.

10.     In her oral evidence the applicant said that her anxiety disorder was the main condition affecting her ability to work.  Other conditions such as her elevated blood pressure and stress-related reflux are well-controlled by medication.  She said that bone and vertebrae degeneration were diagnosed by x-ray but she agreed in her oral evidence that the state of these orthopaedic conditions may be typical of a person of her age.  She is not prevented by her back condition from carrying out her activities.

11.     The applicant gave oral evidence about what happened in her business.  She said that the business operated between 11 am to 4 pm six days a week.  The Tribunal was mindful that this evidence may suggest a capacity to work 30 hours per week but other parts of the evidence, such as that she would only have 5 or 6 sales a day and enjoyed the social side of talking to customers and tourists to Montville, suggest otherwise.  She said that she did not believe she was capable of working in the more pressured environment as an employee.

12.     In a report dated 4 January 2005 (T5), Dr R James, general practitioner, stated that the applicant’s main condition was anxiety and depression for which he prescribed she take Aropax.  In a Treating Doctor’s Report dated 4 January 2005 (T6), Dr James said the applicant has suffered from anxiety and depression for decades.  He stated that the current treatment was medication and counselling and future treatment could include psychological intervention but the applicant could not afford this.

13.     Dr James was contacted by the ARO by telephone on 6 January 2005 (T23).  Dr James then confirmed that the onset of depression/anxiety was decades ago.  The ARO’s record of the discussion read as follows: 

Fluctuating symptoms of anxiety.  Has panic attacks, hyperventilates.  Gets increased production of stomach acid.  With chest pain due to oesophageal spasm.  Currently on medication and supportive counselling.  This will continue.  Planned psychological intervention – but unable to afford.  Customer gets emotional and anxious when has to work to other people’s requirements.  Difficulty driving in heavy traffic due to panic attacks.  Performance anxiety, unable to cope with deadlines.  Condition will continue to impact for more than 24 months and somewhat improve.  Requires extensive, intensive psychotherapeutic interventions but unable to access due to limited finances. [Tribunal emphasis]

CONSIDERATION OF THE ISSUES

14.     The relevant section of the Act is s94.  The view of the Tribunal in this matter is that the evidence is not in a state to satisfactorily determine the questions that arise, and it would be an unfairness to reject the claim outright because of this, without further investigation.

15.     The concerns in this matter are that the applicant’s general practitioner has noted that the applicant has had symptoms of anxiety/depression for decades.  These two conditions are quite different psychiatric disorders.  Her general practitioner has made reference to post traumatic stress disorder (PTSD) – and in her oral evidence there were areas that the applicant clearly did not wish to elaborate upon – nor should she be required to in a hearing situation.  In addition, in her claim she refers to multiple symptoms, as also referred to by her general practitioner.  Some of these may impact on a number of body systems and may or may not require a rating under different parts of the Impairment Tables. 

16.     The crucial point, given the state of the medical evidence, is we do not know. 

17.     The applicant was seen by a Centrelink rehabilitation consultant, Ms D Dewberry.  In her report (T7) Ms Dewberry made reference to a number of matters that potentially point to areas of concern and set the applicant’s case apart.  These include Ms Dewberry’s conclusion that the applicant would need a personal support programme to return to work, and that without any intervention the applicant would be unable to work even 7 hours per week within 24 months (folio 57).  This is a very limited finding in regard to capacity and it was reiterated as her finding even with educational vocational or on-the-job training.  Disability specific intervention was seen as required.

18.     The written record of the ARO’s investigation of the applicant’s claim points to the complexity of the case.  This is reflected in her three closely typed pages of notes.

19.     The Tribunal is mindful that there is no onus in matters of this kind and is mindful also that there is an evidentiary burden on the person who claims a disability support pension to provide the evidence to support the claim.  In this case, that evidence was provided by Dr James as the treating general practitioner but Dr James’ evidence leaves more questions open than it answers.  It is difficult to understand what might have been meant by the words quoted above condition will continue to impact for more than 24 months and somewhat improve. 

20.     Given the state of the evidence such as we have, and taking into account the range of conditions claimed by the applicant, some guidance is given by the Introduction to the Impairment Tables in Schedule 1B of the Act.

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

21.     In the Tribunal’s view the proper course is to refer the applicant for a psychiatric assessment such that the true nature of her psychiatric disorder can be properly ascertained.

22.     It was also evident during the course of the hearing that the applicant was suffering symptoms in relation to asthma and she takes medication for this on a regular basis.  She said that she has been told in the past that she has diminished lung capacity thought to be related to suffering whooping cough as a child.  She said that she has problems with asthma particularly in winter, usually associated with other viral conditions.  In the Tribunal’s view the condition of the applicant’s lungs should be assessed by lung function testing. 

23.     For these reasons the Tribunal considers that the decision to reject the applicant’s claim for disability support pension should be set aside and the necessary investigations of the nature of her psychiatric condition and her lung problems should be further investigated in addition to the impact of these conditions on the applicant’s ability to function.

DECISION

24. The Tribunal sets aside the decision under review pursuant to s43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 and remits the matter for reconsideration by the respondent in accordance with directions that a report be obtained by a psychiatrist on the applicant’s psychiatric condition and that the applicant’s lung function be assessed in regard to her asthmatic/bronchial condition.  

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  9 August 2005 [at Maroochydore]

Date of Decision  9 August 2005 [at Maroochydore]
Date of Written Reasons          18 August 2005 [at Brisbane]
The Applicant appeared in person
For the Respondent                  Ms S Oliver, Departmental Advocate