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

[2016] AATA 694

Campbell and Secretary, Department of Social Services (Social services second review) [2016] AATA 694 (8 September 2016)

Division	GENERAL DIVISION
File Number	2015/6628
Re	Donald Campbell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	8 September 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

Catchwords

SOCIAL SECURITY – Disability Support Pension – multiple disabilities – whether conditions fully treated and stabilised – program of support – decision in absence of hearing – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 34J, 37

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42 and Sch 2

Secondary Materials

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

REASONS FOR DECISION

Senior Member J F Toohey

8 September 2016

Background

1. Mr Donald Campbell suffers from chronic depression, anxiety disorder, post-traumatic stress disorder (PTSD), low back and left shoulder pain, coronary artery disease, emphysema and chronic obstructive pulmonary disease.  On 18 March 2015, he applied for disability support pension (DSP).  Centrelink decided Mr Campbell did not qualify for the DSP and rejected his claim.

2. On 2 December 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed Centrelink’s decision.  Mr Campbell seeks review of that decision.

3. Mr Campbell and the Secretary have consented to this review being determined without holding a hearing. I am satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. I have therefore made this decision using the power in s 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act) to review the decision concerning Mr Campbell’s claim for DPS by considering the documents lodged with the Tribunal without holding a hearing.

   Documents lodged with the Tribunal

4. The Secretary has given the Tribunal and Mr Campbell a bundle of documents in accordance with s 37 of the AAT Act. They include Mr Campbell’s claim for DSP, medical certificates and reports, reports of Job Capacity Assessments (JCAs), Centrelink records, the decision of the SSCSD, and Mr Campbell’s application for review.

5. The bundle also includes documents relating to a claim for DSP made by Mr Campbell in June 2014.  They include reports from his general practitioner, Dr David Batagol; Mr Vic Val, registered psychologist; other medical reports and scans; and reports of JCAs.  

6. Mr Campbell has given the Tribunal and the Secretary the following additional reports: 

   (i)Dr B Iyer, consultant psychiatrist, dated 18 February 2015 and 15 June 2015

   (ii)Mr Val, dated 25 May 2015;

   (iii)Robert Pryde, registered psychologist, dated 22 June 2015;

   (iv)Dr Batagol, dated 12 April 2016;

   (v)Ms Melissa O’Brien, Disability Employment Consultant, dated 26 August 2015.

7. The Secretary has given Mr Campbell and the Tribunal a Statement of Issues, Facts and Contentions. 

   Qualification for the DSP

8. To qualify for the DSP, Mr Campbell must satisfy the criteria in s 94 of the Social Security Act 1991 (the SS Act). In summary, he must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables in the SS Act; and

   (ii)a continuing inability to work as defined in the SS Act.

   The claim period

9. Mr Campbell had to satisfy these criteria on 18 March 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 17 June 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.

   The Impairment Tables

10. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) includes rules for assessing the degree of functional impairment caused by a condition, and for assigning impairment ratings. According to its severity, a condition may be rated between nil and 30 points.

11. An impairment can only be given a rating if the condition causing it is a fully documented, diagnosed condition which has been investigated, treated and stabilised: subsection 6(4).  The condition must be considered permanent, meaning that, in light of available evidence, it will more likely than not persist for more than two years. 

12. For the purposes of the Impairment Tables, fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

13. In assessing whether a condition is fully stabilised, a decision-maker must consider 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: paragraph 6(5).

    Continuing inability to work

14. The provisions concerning continuing inability to work are quite detailed and complex.  In summary, there are two components to a continuing inability to work.

15. Firstly, a person has a continuing inability to work because of an impairment if it is of itself sufficient to prevent him or her from doing any work independently of a program of support within the next two years; and it prevents him or her from undertaking a training activity during the next two years, or such training is unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next two years: s 94(2) of the SS Act.

16. Secondly, unless a person has a severe impairment, he or she must have actively participated in a program of support for 18 months in the three years immediately before applying for DSP: s 94(2)(aa). An impairment is severe if it is rated 20 points or more, of which 20 points or more are under a single Impairment Table: s 94(3B).

17. At the time of his application for DSP on 18 March 2015, Mr Campbell had actively participated in a program of support for approximately 260 days, or approximately nine months.  This means that, unless one of his impairments is severe, he does not have a continuing inability to work, and the claim he made for DSP on 18 March 2015 must fail.

    Chronic depression, anxiety disorder and PTSD

18. For the purposes of the Impairment Tables, Mr Campbell’s chronic depression, anxiety disorder and PTSD result in a single impairment of his mental health function and are rated under Table 5 (Mental Health Function).  I will refer to his conditions collectively as his “mental health condition”.

19. The first step is to consider whether Mr Campbell’s chronic depression, anxiety disorder and PTSD were fully diagnosed, treated and stabilised during the claim period.  The Secretary accepts that Mr Campbell’s mental health condition was fully diagnosed during the claim period but says it was not fully treated and stabilised.  For the reasons that follow, I agree.

20. Mr Campbell’s first claim for DSP was accompanied by a report from Dr Batagol.   For reasons which are not clear, it did not refer to any mental health condition.  A certificate from Dr Batagol dated 24 July 2015 referred to “depression with anxiety” and in a further report dated 21 August 2014, Dr Batagol stated that Mr Campbell has suffered chronic depression and anxiety since 1989.  He stated Mr Campbell commenced psychological counselling in August 2014 but had had “no past counselling”; “further counselling” was planned.

21. Dr Batagol reported on 18 March 2015  that Mr Campbell’s chronic depression, anxiety disorder and PTSD had their onset in 1990 and had been diagnosed by Mr Val, psychologist.  He said Mr Campbell had seen Dr Iyer, psychiatrist, on 18 February 2015 and that current treatment was psychological counselling, commenced in August 2014, antidepressant medication commenced in December 2014, and treatment by Dr Iyer.  He reported that “future/planned treatment” was “psychologist and psychiatric counselling”.  He thought the effect of the condition on Mr Campbell’s ability to function was expected to persist for more than 24 months and, within the next two years, was expected to fluctuate and be uncertain.

22. In a letter to Dr Batagol on 18 February 2015, Dr Iyer  reported that Mr Campbell had been seeing Mr Val over several months and been receiving counselling, and he found relaxation exercises beneficial.  Dr Iyer recommended that antidepressant medication would help with his “secondary depressive/anxiety symptoms”.  He noted that Mr Campbell had been on Pristiq 50 mg in the morning for the past month “with slight benefit” and recommended the dosage be increased to 100 mg and, if necessary to 150 mg after two weeks.   He recommended Mr Campbell continue on this dosage for three months and attend for further review after which, depending on the benefits of Pristiq, it might be worth changing to another antidepressant such as Endep, which is “specific for pain related depression”.

23. On 25 May 2015, Mr Val reported that he had been seeing Mr Campbell over the course of 18 sessions since August 2014.  It is clear from the report that Mr Campbell had been suffering from depression and anxiety for many years with little improvement.  Mr Val did not comment on whether the condition was likely to improve, deteriorate, or remain the same.

24. On 15 June 2015, Dr Iyer reported to Dr Batagol that, since increasing his medication, Mr Campbell’s “mood has somewhat improved” but he had been distressed by the rejection of his claim for DSP.  Dr Iyer said he had advised Mr Campbell to continue on his medication.

25. On 22 June 2015, Mr Robert Pryde, a registered psychologist, reported to Dr Batagol that he had seen Mr Campbell that day for assessment of his mental health and capacity to work.  He said Mr Campbell reported that Mr Val had moved interstate and he was no longer in treatment.  He recommended that Mr Campbell see Dr Iyer as soon as possible for medication review and check-up, and that he undertake ongoing psychotherapy at least once a fortnight (but it was beyond his resources to provide such treatment).

26. In a report dated 12 April 2016, Dr Batagol reported that Mr Campbell’s chronic depression and anxiety “may improve with counselling, although there is no real trend for improvement so far”. 

27. The medical reports refer mainly to Mr Campbell’s depression and anxiety.  Although he mentioned PTSD in his first report, Dr Batagol did not mention it in his most recent report.  The reasons are not clear but it makes no difference to the outcome in this case.  It is enough that Mr Campbell was diagnosed with depression and anxiety during the claim period.

28. It is clear that Mr Campbell has suffered from his mental health condition for many years.  Dr Batagol in his last report did not seem optimistic about the prospects for improvement.    However, I do not think it can be said that Mr Campbell’s condition was fully treated and stabilised during the claim period.  

29. Mr Campbell had been seeing Mr Val since August 2014, approximately eight months before the start of the claim period.  In a letter to Dr Batagol dated 9 January 2015, Mr Val said he had seen Mr Campbell for ten sessions during which he had been dealing with many unresolved issues which were coming to the surface during therapy.  He requested another referral for Mr Campbell “to enable further therapy to unearth his subconscious process and to continue working with practical strategies”. 

30. Mr Campbell first saw Dr Iyer one month before the start of the claim period.  On 15 June 2015, one day before the claim period ended, Dr Iyer noted some improvement with the change in medication.  Approximately one week later, Mr Pryde recommended psychotherapy. 

31. Whether Mr Campbell would have seen continued improvement with medication, whether further sessions with Mr Val would have been helpful, and whether psychotherapy would have provided any benefit, were all untested by the end of the claim period.  For this reason, I am not satisfied that this condition was fully treated and stabilised during that period. It follows that Mr Campbell’s mental health condition cannot be given an impairment rating for the purposes of the present claim.

    Low back and left shoulder pain

32. In his report dated 21 August 2014, Dr Batagol stated that Mr Campbell had suffered chronic back pain since 2009 and that osteoarthritis had been noted on an x-ray.  He stated that Mr Campbell had had no past treatment but had been on painkillers since June 2014; he might need a CT scan of his spine, steroid injections and physiotherapy.  He noted: “May take some time to assess treatment response”.  

33. In his report dated 18 March 2015, Dr Batagol stated that Mr Campbell had suffered lower back pain and left shoulder pain since 2011-2012.  He referred to the opinion of Dr K Chi, radiologist, and a diagnosis in July 2014, he noted that Mr Campbell had been on painkilling medication since August 2014 but otherwise had not sought treatment for the previous 25 years.  It is not clear how this comment relates to the apparent onset and diagnosis within a relatively short time of Mr Campbell’s claim for DSP.

34. Dr Batagol noted that “future/planned treatment” was physiotherapy and “possibly neurosurgery consultation”.   He thought Mr Campbell’s condition was likely to persist for more than 24 months, and to fluctuate and deteriorate.  

35. It is not clear from Dr Batagol’s report what the specific diagnoses of Mr Campbell’s lower back pain and left shoulder pain are.  What is clear, however, is that Mr Campbell had not had treatment for either condition until August 2014 and that, during the claim period, further treatment in the form of physiotherapy and possibly a consultation with the neurosurgeon were planned. 

36. For this reason, I am not satisfied that Mr Campbell’s low back and left shoulder pain were fully treated and stabilised during the claim period.  It follows that they cannot be given an impairment rating for the purposes of the present claim.

    Coronary artery disease, emphysema and chronic obstructive pulmonary disease

37. In his report dated 18 June 2014 in support of Mr Campbell’s first claim for DSP, Dr Batagol stated he had chronic obstructive pulmonary disease/emphysema with a possible onset date of 2000.  He stated the disease had been confirmed by a CT scan of his chest on 16 June 2014 by Dr K Chi, a copy of whose report he attached. 

38. A report from Gosford Hospital to Dr Batagol on 31 October 2014, which includes a CT scan of Mr Campbell’s chest, confirmed “paraseptal emphysema throughout the lungs”.  The report advised that the Home Education Respiratory Rehabilitation Service had visited Mr Campbell at home after his discharge and discussed matters including energy conservation, breathing exercises, medication review, and that he had agreed to phone monitoring and coaching with a “CDMP”.

39. In his report dated 18 March 2015 for Mr Campbell’s second claim, Dr Batagol confirmed that Mr Campbell had passed “coronary artery disease – angioplasty”, and “emphysema/COPD”.  According to the JCA on 8 May 2015, Mr Campbell was taking 25 mg of perindopril, 100 mg of aspirin and 75 mg of clovix, daily.  He said he saw cardiologist Dr James Rogers in hospital and was supposed to see him two weeks previously but had cancelled due to the cost; he would rebook the appointment in a few weeks.  The assessor noted that Mr Campbell’s symptoms were “feeling generally weak and being lethargic”.

40. A report dated 12 March 2015 from Dr M D Sandeman, respiratory and sleep physician, shows that Mr Campbell was admitted to Gosford Hospital under his care with “infective exacerbation, complicated by hypercapnic respiratory failure” which required treatment including angiogram and coronary stenting. Dr Sandeman reported that, post discharge, Mr Campbell had continued to improve and was “back to his baseline level of function”.

41. The Secretary accepts that Mr Campbell’s emphysema and chronic obstructive pulmonary disease were fully diagnosed, treated and stabilised during the claim period.  Nothing in the medical reports suggests any significant improvement is likely; at best, Mr Campbell was able to get back to his “baseline level of function” after surgery.

42. The Secretary says that Mr Campbell’s coronary artery disease was fully diagnosed, but not fully treated and stabilised, during the claim period because, on 15 July 2015, he advised an authorised review officer that he had again cancelled the appointment with Dr Rodgers and had not sought a specialist consultation since approximately February 2015.  The Secretary says that an impairment rating therefore cannot be given to this condition.

43. I do not disagree with the Secretary’s contention but, from the information before me, I am not sure that it makes any material difference whether or not Mr Campbell’s coronary artery disease was fully treated and stabilised during the claim period. This is because, although distinct from his chronic obstructive pulmonary disease, both affect his capacity to undertake functions requiring physical exertion and stamina. 

44. The Impairment Tables instruct that, where two or more conditions cause a common or combined impairment, a single rating should be assigned to that impairment under a single Table: paragraph 10(5).  As an example, they state that heart disease and chronic lung disease may each result in breathing difficulties, in which case a single impairment rating should be assigned using Table 1. 

45. The Secretary says Mr Campbell’s chronic obstructive pulmonary disease and emphysema had only a mild to moderate impact on his functioning during the claim period but, in any event, a rating not greater than ten points should be awarded.  The SSCSD assigned a rating of ten points because it found that Mr Campbell was unable to walk far outside his home. This was sufficient to find a moderate functional impact and a rating of ten points.

46. According to the record of Mr Campbell’s conversation with an authorised review officer on 15 July 2015,  Mr Campbell told the officer that he becomes breathless when walking and can only do light things around the home; if he takes it easy and focuses on his breathing he can walk 1 kilometre from his home to the local shops; he has to stop twice on the way to have a rest; he estimates he would need to rest for about two minutes after 300 metres; he is able to use public transport and walk around a shopping centre; he has some difficulty performing day-to-day household activities because he becomes breathless but he thought this was more to do with his back.

47. The written reasons of the SSCSD show that Mr Campbell told that tribunal much the same: that he was able to walk around a supermarket if he uses a trolley for his groceries, but may stop for a rest occasionally; he can walk from the car park to the supermarket; and he does not use public transport although the SSCSD thought this more likely due to his anxiety disorder than his emphysema and chronic obstructive pulmonary disease.

48. On the information before me, I agree that Mr Campbell’s emphysema and chronic obstructive pulmonary disease should be rated ten points. I am not satisfied they should be rated twenty points. A rating of 20 points (severe functional impact) requires that a person:

    (a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

    (i)     walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

    (ii)    walk (or mobilise in a wheelchair) from the carpark into a shopping centre without assistance; or

    (iii)    use public transport without assistance; or

    (iv)   perform light to day-to-day household activities (e.g. folding and putting away laundry or light gardening); and

    (b)has or is likely to have difficulty sustaining work-related tasks of clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. Mr Campbell has not disputed the notes of the authorised review officer or the decision of the SSCSD recording what he told that tribunal.  The information before me does not support the conclusion that he is unable to do any of the activities above.

   Conclusion

2. On the information before me, I find that Mr Campbell’s conditions rated 10 points on the Impairment Tables during the claim period.  As he did not have a rating of 20 points or more, his claim cannot succeed.  It is therefore not necessary to decide whether he also had a continuing inability to work.

3. It is clear from the information before me that Mr Campbell has serious disabilities. The fact that his present claim did not succeed does not prevent him from making further claims in the future. 

4. For these reasons, I affirm the decision under review.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 8 September 2016

Date of hearing 2 August 2016
(heard on the papers)