Brennan and Secretary, Department of Social Services (Social services second review)
[2018] AATA 1864
•27 June 2018
Brennan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1864 (27 June 2018)
Division:GENERAL DIVISION
File Number: 2017/5249
Re:Russell Brennan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:27 June 2018
Place:Brisbane
The Tribunal affirms the decision under review.
.............................[Sgd]...........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
27 June 2018
INTRODUCTION
On 28 October 2016 Mr Brennan lodged a claim for Disability Support Pension (“DSP”).[1] In November 2016, subsequent to the DSP claim, a medical certificate was provided to the Department of Human Services (“Centrelink”) by Dr Ala Ismail, General Practitioner, which listed Mr Brennan’s medical conditions as:[2]
·Anxiety and depression
·Stroke
·Diabetes T2
[1] Exhibit 1, T Documents, T22, pages 140-170, at 80, Mr Brennan’s Claim for DSP dated 5 November 2015.
[2] Exhibit 1, T Documents, T23, Page 171, Medical certificate dated 11 November 2016.
Dr Ismail reported that Mr Brennan’s:
(a)anxiety and depression was temporary and being treated with antidepressants and psychological input;
(b)stroke was long term; and
(c)diabetes was long term.
On 21 November 2016 Dr Chinna Samy, Psychiatrist, reported to Centrelink that Mr Brennan had:[3]
(a)an adjustment disorder with anxiety and depression, secondary to a stroke in late 2014, which:
(i)was a permanent condition and unlikely to improve significantly with any further treatment;
(ii)results in mild depression and anxiety with mild functional impacts relating to mood, social interaction and anxious thoughts;
(iii)was being treated with psychology and antidepressants but no further consultations with the psychiatrist are planned;
(b)vertigo but that the underlying cause was unknown.
[3] Exhibit 1, T Documents, T 24, pages 172 – 173, Medical evidence provided by Dr Samy dated 21 November
2016.
On 21 November 2016 a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Brennan by a Registered Psychologist and Registered Occupational Therapist.[4]
[4] Exhibit 1, T Documents, T 25, pages 174 – 183, JCA Report dated 12 November 2016.
As a result of the JCA report Centrelink rejected Mr Brennan’s claim for DSP on 29 November 2016.[5]
[5] Exhibit 1, T Documents, T 26, pages 184 – 185, Letter from Centrelink dated 29 November 2016.
Claim History
Mr Brennan sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Brennan’s medical conditions were either not fully diagnosed, treated and stabilised or did not attract an impairment rating of 20 points.[6]
[6] Exhibit 1, T Documents, T 29, pages 188 – 194, Decision of ARO and notes dated 22 March 2017.
Mr Brennan lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 31 March 2017.[7] The SSCSD rejected Mr Brennan’s claim and affirmed the ARO’s decision on 9 August 2017.[8]
[7] Exhibit 1, T Documents, T 31, pages 196 – 197, Request for a statement dated 31 March 2017.
[8] Exhibit 1, T Documents, T2, pages 3- 8, SSCSD’s Decision and Reasons for Decision dated 9 August 2017.
Mr Brennan has sought a review of the SSCSD’s decision by this Tribunal and submitted that he could not work due to his vertigo and because his second stroke had affected the part of the brain that sends speech to the mouth.[9]
[9] Exhibit 1, T Documents, T1, pages 1-2, Mr Brennan’s Application for Review dated 29 August 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Brennan must have a physical, intellectual or psychiatric impairment;
(b)Mr Brennan’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[10]
(c)Mr Brennan must have a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Brennan meets the Section 94 Requirements is the date of the claim (in this instance as at 28 October 2016), unless Mr Brennan becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[11] Therefore, in order to qualify for DSP Mr Brennan must have met the Section 94 Requirements between 28 October 2016 and 27 January 2017 (“Qualification Period”).
[11] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Brennan’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[12]
DID MR BRENNAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[12] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[13]
Mr Brennan’s medical conditions
[13] Determination, s 3.
Stroke - Impacts
In 2010 Mr Brennan suffered from a stroke which caused him to have left-sided weakness, slurred speech, and to tire easily with physical activity. His prognosis at that time was that it would be likely that he would be likely to show considerable improvement within two years.[14]
[14] Exhibit 1, T Documents, T5, page 68, Medical certificate of Dr Andrew McNeil, Gen practitioner, dated 24 August
2010; T6, page 69, Medical certificate of Dr McNeil dated 29 September 2010.
In November 2010 Dr Andrew McNeil, General Practitioner, reported that Mr Brennan’s stroke:[15]
(a)caused him to be lethargic and very tired after 30 minutes of physical activity;
(b)was being treated with medications; and
(c)was likely to impact on Mr Brennan’s ability to function for less than two years and was likely to significantly improve in that time.
[15] Exhibit 1, T Documents, T7, page 72, Medical report of Dr McNeil dated 24 November 2010.
In February 2011 Mr Brennan had a CT scan of his head which found that whilst the history of the previous infarction was indicated there were no convincing acute lesions.[16]
[16] Exhibit 1, T Documents, T9, page 77, CT report dated 3 March 2011.
In October 2014 Mr Brennan presented at hospital as a result of increasing confusion over two days and associated difficulty with his speech. The hospital records indicate that Mr Brennan had had another stroke and was also suffering from expressive dysphasia.[17]
[17] Exhibit 1, T Documents, T 11, pages 83 – 87, Queensland health discharge summary dated 20 October 2014.
In February and May 2017 Dr Ismail reported that Mr Brennan’s impacts of this stroke would be long-term and were affecting Mr Brennan’s concentration, personal interactions and interpersonal relations, communication and speech which is likely to be permanent.[18]
[18] Exhibit 1, T Documents, T 27, page 186, Medical certificate of Dr Ismail dated 6 February 2017; T 33, page 200,
Medical certificate of Dr Ismail dated 11 May 2017.
Diabetes
Based on the medical evidence available Mr Brennan has had diabetes since at least 2006. In 2010 Mr Brennan was treating the condition diabetes with medications.[19]
[19] Exhibit 1, T Documents, T6, page 69, Medical certificate of Dr McNeil dated 29 September 2010.
In November 2010 Dr McNeil, General Practitioner, reported that Mr Brennan’s diabetes:[20]
(a)was causing him lethargy;
(b)was being treated with medications and diet control;
(c)will impact on Mr Brennan’s ability to function for more than two years but was likely to fluctuate.
[20] Exhibit 1, T Documents, T7, page 73, Medical report of Dr McNeil dated 24 November 2010.
In February and May 2017 Dr Ismail reported that Mr Brennan’s diabetes is long-term.[21]
[21] Exhibit 1, T Documents, T 27, page 186, Medical certificate of Dr Ismail dated 6 February 2017; T 33, page 200,
Medical certificate of Dr Ismail dated 11 May 2017.
Mr Brennan reported to the JCA in November 2016 that his diabetes condition was having minimal impact on his day to day functioning.[22]
[22] Exhibit 1, T Documents, T25, page 177, JCA report dated 22 November 2016.
Anxiety and Depression
In February and May 2016 Dr Ismail reported that Mr Brennan had temporary anxiety and depression.[23]
[23] Exhibit 1, T Documents, T 15, page 100, Medical certificate of Dr Ismail dated 9 February 2016; T 18, page 129,
Medical certificate of Dr Ismail dated 16 May 2016.
In September 2016 Dr Samy diagnosed Mr Brennan with adjustment disorder – depression and anxiety – following his stroke. Dr Samy reported that:[24]
[24] Exhibit 1, T Documents, T 20, pages 137 – 138, Report of Dr Samy dated 19 September 2016.
(a)Mr Brennan was finding it hard to articulate his thoughts and struggled with finding words;
(b)Mr Brennan had been on a carers pension until January 2016 and was currently enrolled to study information technology at a private college;
(c)Mr Brennan said that since the stroke in 2014 he had found it difficult to find appropriate words or stream words together;
(d)Mr Brennan said the dyspraxia is improving over the last two years;
(e)Mr Brennan said he:
(i)had become withdrawn and tended to spend long periods of time lying in his bed;
(ii)harboured ideas of helplessness and hopelessness and self-confidence levels have plummeted;
(iii)is future oriented and wants to do work from home, repairing computers once he finished his course;
(f)there are no features of melancholia or major depression;
(g)Mr Brennan has features of anxiety;
(h)Mr Brennan is able to go to college five days a week and cope with the demands of his course;
(i)Mr Brennan’s wife drives him around due to his vertigo;
(j)Mr Brennan has been started on Pristiq and he has felt better with the treatment;
(k)Mr Brennan has been seeing a psychologist since the beginning of 2016;
(l)he recommended that Mr Brennan continue taking Pristiq and did not arrange for any further appointment at that time.
In February and May 2017 Dr Ismail reported that Mr Brennan’s anxiety and depression:[25]
(a)was ongoing;
(b)causing mood swings, anergia, anhedonia, poor sleep and increased anxiety; and
(c)was being treated with an antidepressant and psychological input.
[25]Exhibit 1, T Documents, T 27 and T 33, pages 186 and 200, Medical certificates of Dr Ismail dated 6 February 2017 and 11 May 2017.
Cognitive Function
In May 2017 Ms Phoenix Lawless (provisional psychologist), Dr Tamara De Regt (supervising clinical psychologist) and Dr Dixie Statham (supervising clinical psychologist) reported that:[26]
(a)Mr Brennan had had an initial assessment and a battery of cognitive tests in order to understand his current cognitive functioning and provide strategies to assist with any difficulties;
(b)the focus of Mr Brennan’s future sessions will be assessing his cognitive functioning and developing a comprehensive cognitive report with recommendations regarding his strength and abilities as well strategies to better manage his challenges; and
(c)they anticipated a further four sessions will be required to complete testing and receive feedback regarding his results.
[26] Exhibit 1, T Documents, T 34, page 201, report of Ms Lawless, Dr Regt and Dr Statham dated 23 May 2017.
Vertigo
In February 2011 Dr Neil reported that Mr Brennan was having episodes of vomiting and vertigo which are occurring fortnightly and lasting for up to 30 minutes.[27]
[27] Exhibit 1, T Documents, T 17, pages 118-128, Health records.
In May 2016 Dr Ismail reported that Mr Brennan’s vertigo was temporary.[28]
[28] Exhibit 1, T Documents, T 18, page 129, Medical certificate of Dr Ismail dated 16 May 2016.
In March 2017 Dr Ismail reported that Mr Brennan was having ongoing treatment for vertigo.[29]
[29] Exhibit 1, T Documents, T 28, page 187, Medical certificate of Dr Ismail dated 13 March 2017.
In March 2017 Dr Bruce Flegg, General Practitioner, reported that Mr Brennan was having frequent severe episodes of vertigo and that Mr Brennan avoids driving during vertigo episodes and has not had an ENT assessment as it is not available publicly in Caboolture.[30]
[30] Exhibit 1, T Documents, T 30, page 195, Medical certificate of Dr Flegg dated 28 March 2017.
Other
There is information in some of the medical reports that in addition to the above outlined conditions Mr Brennan has also suffered from dyslipidaemia, gastro-oesophageal reflux disease (GORD), hypertension and vitamin B12 deficiency.[31]
[31] Exhibit 1, T Documents, T 10, page 78, patient health summary dated 13 July 2013; T12, pages 88 – 89, health
summary sheet dated 28 September 2015; T 13, pages 90 – 91, health summary sheet dated 16 November 2015; T 16, pages 101 – 102, health summary sheet dated 23 February 2016; T 32, pages 198 – 199, health summary sheet dated 10 April 2017.
In May 2016 Dr Ismail reported that Mr Brennan’s hypertension was temporary.[32]
[32] Exhibit 1, T Documents, T 18, page 129, Medical certificate of Dr Ismail dated 16 May 2016.
Conclusion on Impairment
Considering the above medical evidence, the Tribunal finds that during the Qualification Period Mr Brennan suffered from Dysphasia Impairment and a Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the diabetes condition, it is causing minimal impact on Mr Brennan’s ability to function and therefore it is not necessary for the Tribunal to consider this condition any further.
In relation to the dyslipidaemia, gastro-oesophageal reflux disease (GORD), hypertension and vitamin B12 deficiency, there is insufficient information available to the Tribunal. Further, Mr Brennan told the JCA these conditions were having a minimal functional impact[33] and therefore they cannot be considered for the purpose of this application.
[33] Exhibit 1, T Documents, T25, pages 174-175, JCA report dated 22 November 2016
In relation to Mr Brennan’s cognitive function, there is no medical evidence concerning this condition prior to or during the Qualification Period. The subsequent early information assessed by psychologists in May 2017 requires further investigation which has not yet occurred and does not indicate to the Tribunal that it is referrable to the Qualification Period. Mrs Brennan confirmed also that, from her perspective, Mr Brennan had deteriorated since lodging the DSP claim being considered here and they have since lodged a new DSP claim earlier this year. In these circumstances Mr Brennan’s cognitive condition cannot be said to have been fully diagnosed during the Qualification Period, nor is there any evidence that his condition was stable. As a result, this condition cannot be considered for the purpose of this DSP application, although it may be relevant to Mr Brennan’s subsequent claim.
In relation to the vertigo condition Mr Brennan accepted that this condition was not fully diagnosed during the Qualification Period as he had not been assessed by a specialist. Therefore, this condition cannot be considered permanent for the purpose of this application, but again may be relevant to Mr Brennan’s subsequent claim.
DO MR BRENNAN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[34] They are function based[35] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[36]
[34] Determination, s 4(2) and 5(2)(a).
[35] Determination, s 5(2)(b) and (c).
[36] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[37]
(a)Mr Brennan’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[37] Determination, see s 6(3).
Mr Brennan’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[38]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[38] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[39] the following must be considered:[40]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[39] For the purposes of ss 6(4)(a) and (b) of the Determination.
[40] Determination, see s 6(5).
A condition is fully stabilised[41] if:[42]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[43]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[41] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[42] Determination, see s 6(6).
[43] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Mr Brennan’s Mental Health Condition permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Brennan’s mental health condition was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[44] The Tribunal agrees with the Secretary that Mr Brennan’s Mental Health Impairment can be considered permanent for the purpose of the Act and an Impairment Rating can be assigned.
[44] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 9 April 2018, para 6.8.
Using the Impairment Tables
The level of impact of Mr Brennan’s Mental Health Impairment has to be assessed against the descriptors[45] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[46]
[45] Determination, see ss 3 and 5(3).
[46] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[47]
[47] Determination, see s 6(1).
Pursuant to the Determination the following information:
(a)must be taken into account in applying the Tables:[48]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account in applying the Tables:[49]
(i)symptoms reported by Mr Brennan in relation to his condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Brennan’s local community.
[48] Determination, see s 7.
[49] Determination, see s 8.
Which Tables are appropriate are determined by:[50]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[50] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[51]
[51] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[52]
[52] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[53]
[53] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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 by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Secretary submits there is no evidence to support a claim of 10 or 20 points and that an Impairment Rating of 5 points is appropriate.[54]
[54] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 9 April 2018, para 6.11.
The Descriptors for an Impairment Rating of 5 points are:
(1)The person has mild difficulties with most of the following:
(a)self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)work/training capacity.
EXAMPLE: THE PERSON HAS OCCASIONAL INTERPERSONAL CONFLICTS AT WORK, EDUCATION OR TRAINING THAT REQUIRE INTERVENTION BY A SUPERVISOR, MANAGER OR TEACHER OR CHANGES IN PLACEMENT OR GROUPINGS.
The Descriptors for an Impairment Rating of 10 points are:
(1)The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
EXAMPLE: THE PERSON OFTEN HAS INTERPERSONAL CONFLICTS AT WORK, EDUCATION OR TRAINING THAT REQUIRE INTERVENTION BY SUPERVISORS, MANAGERS OR TEACHERS OR CHANGES IN PLACEMENT OR GROUPINGS.
Evidence Identifying the Loss of Function
The Secretary relies upon the following evidence as supporting an Impairment Rating of 5 points under Table 5:[55]
(a)Dr Samy reported in November 2016 that:
(i)Mr Brennan’s social functions had declined over the years;
(ii)Mr Brennan has a limited support system consisting of his wife and best friend;
(iii)Mr Brennan has feelings of helplessness and hopelessness and has reduced confidence due to finding it hard not to work; and
(b)Dr Ismail reported in November 2016 that Mr Brennan’s mood was up and down, and he had anergia, anhedonia, poor sleep, increased anxiety.
[55] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 9 April 2018, para 6.10.
At the hearing Mrs Brennan, representing her husband, told the Tribunal:
·Mr Brennan has increased anxiety when he meets new people, due to his speech issues;
·Does not go out alone except to the nearby shops and to close friends;
·Spends his time on the computer surfing the web, using Facebook to stay in touch with family and watching Netflix
·When he was having psychology treatment he did better, but his psychologist does not practice anymore, and they are waiting on a referral
·During the Qualification Period Mr Brennan had weekly visits with Dr Ismail.
The Tribunal notes that during the Qualification Period Mr Brennan was also able to study although at the hearing Mrs Brennan confirmed that he had to stop studying in May 2017, which is after the Qualification Period, due to concentration issues.
Based on the corroborating medical evidence Mr Brennan’s Mental Health Impairment could be said to sit somewhere between mild to moderate. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[56]
[56] Determination, see s 11(1).
Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 5 points.
Is Mr Brennan’s Dysphasia Condition permanent and likely to persist for at least 2 years?
Mr Brennan dysphasia resulted from a stroke in 2014. As a result of his stroke Mr Brennan had to spend 2 weeks in a rehabilitation facility. However, he still has dysphasia today. The Secretary accepts that Mr Brennan’s Dysphasia condition was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[57] The Tribunal agrees that Mr Brennan’s Dysphasia Impairment can be considered permanent for the purpose of the Act and an Impairment Rating can be assigned.
[57] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 9 April 2018, para 6.1.
Relevant Impairment Table and Impairment Rating
Table 8 of the Determination, which deals with Communication Function, is the relevant Table.
The introduction to Table 8 provides that:
·Table 8 is to be used where the person has a permanent condition resulting in functional impairment affecting communication functions.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·The person must be assessed on their independent communication abilities using any aids or equipment (assistive technology) that they have and usually use and without physical assistance from a support person.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa specialist assessment by a speech pathologist, neurologist or psychologist;
oa report from a medical specialist confirming diagnosis of conditions associated with communication impairment (e.g. stroke (cerebrovascular accident (CVA)), other acquired brain injury, cerebral palsy, neurodegenerative conditions, damage to the speech-related structures of the mouth, vocal cords or larynx);
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of functional assessments.
·If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.
·If the impairment affecting communication function is due to impairment in intellectual function, only Table 9 must be used.
·In this Table, main language means the language that the person most commonly uses.
In this Table, communication or communication functions means receptive communication (understanding language) or expressive communication (producing speech).
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on communication in the person’s main language.
(1) At least one of the following applies:
(a) the person;
(i)has some difficulty understanding day to day language, particularly where a sentence or instruction includes multiple steps or concepts (e.g. ‘Please take this book out to Jane at the front desk and ask her to give you some paper clips and bring them back in here’); or
(ii)may need instructions repeated or broken down into shorter sentences; or
(b)the person has moderate difficulty in producing speech (e.g. a stutter or stammer), difficulty coordinating speech movements or damage to speech structures (e.g. vocal cords, larynx) which makes speech effortful, slow or sometimes difficult for strangers to understand; or
(c)the person uses alternative or augmentative communication (e.g. sign language, technology that produces electronic speech, use of symbols to communicate) and is unable to speak clearly and may be partially reliant on a recognised sign language (e.g. Auslan or signed English) or other non-verbal communication methods.
The Descriptors for an Impairment Rating of 5 points are:
(1)At least one of the following applies:
(a)the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or
(b)the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.
Evidence Identifying the Loss of Function
The Secretary relies upon the following evidence as supporting an Impairment Rating of 5 points under Table 8:[58]
(a)The report of psychiatrist Dr Samy dated 21 November 2016 who noted that the Applicant found it hard to articulate his thoughts, struggled with finding words and found it difficult to find appropriate words or streaming words together;
(b)the observations of the JCA that Mr Brennan was slow to respond to some questions and he appeared to have difficulty choosing his words.
[58] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 9 April 2018, paras 6.2-6.3.
Mrs Brennan told the hearing that there was no difficulty understanding Mr Brennan when he spoke, it was just that it was hard for Mr Brennan to articulate his thoughts in the usual manner.
The evidence indicates that the dysphasia could be having either a mild or a moderate impact on Mr Brennan producing speech. As a result, a 5-point Impairment Rating is appropriate under Table 8.
WERE MR BRENNAN’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that the total Impairment Rating for Mr Brennan’s permanent Impairments was 10 points. Therefore, Mr Brennan did not satisfy section 94(1)(b) of the Act during the Qualification Period.
It may be that some of Mr Brennan’s Impairments have deteriorated and this will no doubt be considered by Centrelink in Mr Brennan’s subsequent DSP claim.
DID MR BRENNAN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has found that Mr Brennan’s permanent Impairments did not attract an Impairment Rating of at least 20 points during the Qualification Period it is not necessary to consider whether Mr Brennan had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Brennan’s claim fails because he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..........................[Sgd]..............................................
Associate
Dated: 27 June 2018
Date of hearing:
Applicant:
12 June 2018
By telephone
Advocate for the Applicant: Fay Brennan (by telephone) Advocate for the Respondent: Mr Jake Kyranis Solicitors for the Respondent: Department of Human Services
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