Choroszynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 830
•17 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 830
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4976
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD CHOROSZYNSKI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date17 September 2008
PlaceBrisbane
Decision The Tribunal set aside the decision under review and determines that disability pension be paid to the applicant from 30 June 2006.
...................[Sgd].......................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – applicant suffers from sleep apnoea, rheumatoid arthritis, polymyalgia rheumatica and depression – physical, intellectual or psychiatric impairment accepted – continuing inability to work accepted – impairment rating is of 20 points – applicant’s conditions have been diagnosed, treated and stabilised by operative period – decision under review is set aside.
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 4(1), schedule 1B,
Re Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788
Re Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347
Re Hatton and Secretary, Department of Employment and Workplace Relations [2007] AATA 1631
Harris v Secretary, Department of Employment and Workplace Relations [2007] 404 FCA 922; (2007) 158 FCR 252
REASONS FOR DECISION
17 September 2008 Dr M Denovan, Member INTRODUCTION
1. Mr Edward Choroszynski suffers from a number of significant medical impairments, as a result of which he suffers from pain and reduced mobility in many of his joints.
BACKGROUND
2. Mr Choroszynski lodged a claim for disability support pension (DSP) on 30 June 2006. On 14 August 2006 Centrelink made a decision to reject his claim.
3. Mr Choroszynski asked for a review of that decision and on 26 April 2007 an authorised review officer reviewed and affirmed the decision.
4. Mr Choroszynski applied to the Social Security Appeals Tribunal (SSAT) for review of the decision of Centrelink. The decision was affirmed by the SSAT on 6 September 2007.
5. The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 11 October 2007.
6. Mr Choroszynski lodged a further claim for disability support pension in February 2008. In relation to that claim, Centrelink determined that Mr Choroszynski was entitled to disability support pension from the date of that claim.
ISSUE FOR DETERMINATION AND RELEVANT LEGISLATION
7. I have to consider whether Mr Choroszynski is entitled to disability support pension in relation to his first claim dated 30 June 2006.
8. Under Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 if the applicant does not qualify for disability support pension on the day on which he made the claim, but qualifies for it within the next 13 weeks, he is taken to qualify for it. Mr Choroszynski therefore needs to meet the criteria for disability support pension within the period of 13 weeks after the day on which the claim was made, that is from 30 June 2006 to 29 September 2006 (“the claim period”).
9. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (“the Act”), that is:
·he must have a physical, intellectual or psychiatric impairment; and
·his impairment must have been of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.
10. Before an impairment rating can be assigned under the Impairment Tables that may be relevant, it is necessary to determine whether Mr Choroszynski’s impairments arise from a condition that has been fully documented, diagnosed, investigated, treated and stabilised, and which is permanent (Schedule 1B of the Act).
11. It is not in dispute that during the claim period, Mr Choroszynski suffered from a physical, intellectual or psychiatric impairment, and that he had a continuing inability to work. The issue that I must decide is whether Mr Choroszynski had an impairment rating of at least 20 points ascribed under the impairment Tables contained in Schedule 1B of the Act.
EVIDENCE OF THE APPLICANT
12. Mr Choroszynski provided a written statement[1] dated 25 July 2008 and provided oral evidence to the Tribunal in person at the hearing. The following is the gist of his oral evidence:
[1] Exhibit 4.
13. Mr Choroszynski said that at the time he made his claim on 30 June 2006, he suffered from sleep apnoea, rheumatoid arthritis, polymyalgia rheumatica and depression. As a result of these conditions, he suffers from pain in a number of places, including in his neck, the side of his head, his eyes, shoulders, knees, toes and lower back.
14. Mr Choroszynski understandably had some difficulty recollecting the exact nature of his complaints as they existed during the relevant claim period. He thought at that time he had undergone one sleep study. He did not and still does not use a sleep apnoea machine, which has been recommended by his doctor. This is because he cannot afford one. As additional treatment for his sleep apnoea condition Mr Choroszynski was told to lose some weight, but has had difficulty doing this and to date has been unsuccessful.
15. In relation to his joint pain, Mr Choroszynski recalls that in June 2006 he was having problems in his legs, back, neck and shoulders that limited his capacity to sit or stand for any length of time. Mr Choroszynski said that as a result of this limitation he finds it hard to do any activity. He is restricted to preparing light meals when he cooks, and cannot perform gardening or any activity that requires items to be carried.
16. Mr Choroszynski said that he was diagnosed with depression some years ago. He has not taken antidepressants because he had a scare when he found out that tablets prescribed for his joint pain, Viox, where found to be dangerous. After that he became reluctant to take any prescribed medication. He does not like the idea of seeing a psychiatrist.
17. During cross-examination Mr Choroszynski acknowledged that his physical condition in all aspects was worse now than it was in June 2006.
18. During the claim period Mr Choroszynski was living alone. He travelled regularly to his parent’s home, some 90 minutes away by train, perhaps twice a week.
MEDICAL EVIDENCE
Dr Ting
19. Dr Ting provided a treating doctor’s report dated 28 June 2006[2]. In that report Dr Ting provided the diagnoses of polymyalgia rheumatica (PMR) and depression with anxiety. In relation to the diagnosis of PMR, Dr Ting reported Mr Choroszynski’s symptoms to be general aches and pain, joint aches and lethargy.
[2] Exhibit 1, T23.
20. Dr Ting reported that Mr Choroszynski’s depression with anxiety was associated with his symptoms of PMR. Dr Ting stated that Mr Choroszynski was receiving counselling as treatment, and that Mr Choroszynski was unable to concentrate as a result of the condition.
21. Dr Ting considered that both conditions would be present for more than 24 months.
22. There is no mention of the condition of sleep apnoea in Dr Ting’s treating doctor’s report dated 28 June 2006. The first time that condition is mentioned is in Dr Ting’s report dated 5 October 2006. In that report Dr Ting lists the condition as one that has minimal or limited impact on Mr Choroszynski’s ability to function, and stated that the condition is likely to improve.
23. Dr Ting gave oral evidence by telephone when the SSAT considered this matter[3]. The SSAT recorded that Dr Ting confirmed the diagnosis of PMR, and said that Mr Choroszynski may have additional diagnoses of rheumatoid arthritis. Dr Ting indicated that Mr Choroszynski suffers from degenerative disc disease in his neck and low back. The SSAT does not record any evidence relating to Dr Ting’s opinion about the condition of depression with anxiety.
[3] Exhibit 1, T2.
Other witnesses
Ms White
24. Ms White is a psychologist employed by Centrelink. She has been preparing job capacity assessment reports for Centrelink since July 2006. She interviewed Mr Choroszynski on 2 August 2006 for the purpose of preparing a Job Capacity Assessment Report[4]. Ms White gave evidence in person to the Tribunal.
[4] Exhibit 1, T25, Folio 166-171.
25. Ms White said that she did not remember the interview with Mr Choroszynski and she relied on her report to answer questions. Ms White rated the condition of depression with anxiety as temporary because in her opinion, he had not received optimal treatment. Ms White said that she came to this conclusion because in her opinion, Mr Choroszynski was non-compliant with medication, as he failed to continue with medication that he had once been prescribed for his depression. Ms White said that she did take into consideration the TDR from Dr Ting, which stated that Mr Choroszynski was mostly compliant with treatment for both of his conditions.
26. Ms White said that she would have used Table 3 and Table 20 from Schedule 1B of the act to rate Mr Choroszynski’s symptoms of PMR because most of the symptoms that Mr Choroszynski described affected his upper limbs. Ms White said that Table 20 could have also been used to allocate Mr Choroszynski impairment points due to that condition, and had she used that table she thought she would have allocated no more than 15 impairment points.
FINDINGS OF TRIBUNAL
Did Mr Choroszynski suffer from a physical, psychiatric or intellectual impairment during the claim period?
27. It is not in dispute that Mr Choroszynski suffered from a physiological and psychological impairment at the time he made his application for DSP. That is the effect of the medical evidence discussed above, and it follows that he satisfies subparagraph 94(1)(a) of the Act.
Were Mr Choroszynski’s conditions fully documented, diagnosed and investigated within the claim period?
28. Mr Choroszynski has consistently reported the same set of symptoms, described as PMR in the relevant treating doctor’s report. Dr Ting confirmed the diagnosis of PMR, and suggested that Mr Choroszynski’s symptoms may be attributable to a combination of conditions, including rheumatoid arthritis, PMR, and degenerative disc disease.
29. In the case of Re Bugno and Secretary, Department of Employment and Workplace Relations[5] 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”.
[5] Re Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788.
30. In the case of Re Maroun and Secretary to the Department of Family and Community Services[6] it was not considered a bar to a claim for disability support pension that different diagnostic labels had been given at various times to a condition that existed in the same form for many years.
[6] Re Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347.
31. The Secretary accepts that PMR and depression with anxiety have been fully documented, diagnosed and investigated. I accept that is the case, and the fact that the diagnostic label given to Mr Choroszynski’s complaints may be evolving to include additional diagnoses does not matter, because the nature of his impairment was fully documented and diagnosed prior to the relevant claim period.
32. According to the evidence of Dr Ting, I find that the diagnosis of sleep apnoea was not fully diagnosed and investigated during the claim period.
33. I find that the diagnoses of PMR and depression with anxiety are the applicable diagnoses for Mr Choroszynski’s medical conditions that he suffered from during the claim period, and that these conditions were fully documented, diagnosed and investigated before the claim period.
Were Mr Choroszynski’s conditions fully treated and was the treatment reasonable?
34. In order to assess whether a condition is fully treated and stabilised, Part 4 of the Introduction to the Tables in Schedule 1B of the act provides that I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
35. In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible i.e., available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
36. The Secretary accepts that Mr Choroszynski’s PMR has been fully and reasonably treated. The evidence of Dr Ting and the applicant is that during the assessment period Mr Choroszynski was treated with acupuncture and oral medication and that he was mostly compliant with treatment.
37. In relation to the condition of depression with anxiety, Dr Ting reported that the applicant was receiving counselling, was mostly compliant with treatment, and that the condition was likely to persist for at least 24 months.
38. The Secretary relies on the opinion of psychologist Ms White, who concluded that Mr Choroszynski had not received optimal treatment for his condition. The Secretary further contends that, as Mr Choroszynski has not been counselled by a psychologist or a psychiatrist he has not received optimal treatment, and therefore his condition cannot be said to be fully treated.
39. The opinion of Ms White and the contentions of the Secretary are not supported by medical opinion. Dr Ting indicated that Mr Choroszynski was receiving counselling, and there is no suggestion that additional counselling by a psychologist or a psychiatrist was either desirable or appropriate. I do not accept the suggestion of Ms White, who is not medically qualified, that Mr Choroszynski should trial a course of antidepressant medication before his condition could be considered stabilised. There is no medical opinion that collaborates her view, and Dr Ting has not suggested that he is of the opinion that antidepressants should be trialled in the future. Unlike Ms White, the applicant’s treating general practitioner considers him a compliant patient with treatment. I prefer the opinion of Dr Ting, who has a medical degree and is far better placed than Ms White to decide what treatment Mr Choroszynski should be receiving for his depression.
40. Counsel for the Secretary referred me to the decision in Hatton[7], in which she said that Senior Member Hunt provided appropriate guidelines for the application of s 94 of the Act. I note in that decision Senior Member Hunt supported the conclusion of Justice Gyles in Harris[8], in relation to the question of when it should be considered that an applicant had been fully treated. In Harris, Justice Gyles said that it was not appropriate for a tribunal to reject a claim because a hypothetical third party (medical practitioner or other practitioners) might come to an adverse opinion in relation to matters of diagnosis or treatment.
[7] Re Hatton and Secretary, Department of Employment and Workplace Relations [2007] AATA 1631
[8] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252.
41. There is no medical evidence supporting the assertion that Mr Choroszynski should have received either drug therapy or alternative counselling for his depression, and that Ms White has suggested hypothetically that Mr Choroszynski’s depression with anxiety may benefit further if he consulted a psychiatrist for counselling, or had he taken antidepressants is not a reason to reject his claim for depression with anxiety.
42. For these reasons I find that Mr Choroszynski’s conditions of PMR and depression with anxiety have been fully and optimally treated.
Were Mr Choroszynski’s conditions fully stabilised?
43. Part 4 of the Introduction to the Tables in Schedule 1B of the Act provides that 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 two years.
44. The evidence of Dr Ting is that Mr Choroszynski’s conditions of PMT and depression with anxiety will fluctuate but persist for at least 24 months. I therefore find that these conditions are fully stabilised.
45. Mr Choroszynski’s conditions of PMT and depression with anxiety have been fully documented, diagnosed, investigated, treated and stabilised and therefore ratings from the impairment tables can be allocated for both conditions.
Impairment rating from the Tables
46. In the initiating claim form[9] Mr Choroszynski reported often having difficulties standing and bending, and sometimes had difficulties walking and sitting. Dr Ting indicated that as a result of Mr Choroszynski’s PMR he has general aches and pains, joint aches and lethargy.
[9] Exhibit 1, T22.
47. In the decision under review Table 3 alone was used to assess Mr Choroszynski’s impairment due to PMR, at the advice of Ms White. Table 3 assesses upper impairment alone. This means that no points were allocated for Mr Choroszynski’s impairment that results from his fatigue, or due to his impairment due to the pain and other impairments in his back and lower limbs.
48. Mr White considered that Mr Choroszynski’s impairment was predominantly an upper limb problem. Ms White’s conclusion appears to be at odds with the information in both the initiating claim for and the treating doctors report.
49. I consider that Table 3 alone would not adequately or fairly assess Mr Choroszynski’s impairment due to PMR. Additional Tables would be necessary. Table 4 provides for the allocation of impairment points due to impairment in the lower limbs. Whilst there is contemporaneous evidence, which supports Mr Choroszynski’s claim that he was having difficulty during the claim period standing walking, bending and sitting, that information is of sufficient detail for me to allocate impairment points from Table 4.
50. The SSAT considered that the appropriate way to assess Mr Choroszynski’s overall impairment due to the condition of PMR is reference to Table 20. I agree that is a far more appropriate method in the circumstances of this case. Ms White’s evidence was that had she used Table 20 she would have allocated no more than 15 impairment points. I find that inconsistent with Ms White’s conclusion in her report that due to Mr Choroszynski’s arthritic condition his capacity to work without intervention was 0-7 hours per week, and with intervention would be 15-22 hours per week.
51. Table Twenty of the Impairment Tables as stated in Schedule 1B of the Act reads as follows:
“TABLE 20 MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (i.e. BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (i.e. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
52. Applying Table 20, a decision to allocate no more than 15 points, is consistent with a finding that full time work is still possible. That finding would be in direct contract to the findings of Ms White. As Ms White is a trained job capacity assessor, I accept her opinion that at the time she saw Mr Choroszynski he could work no more than 22 hours within the next two years, even with intervention.
53. Incapacity to work is not the only requirement under Table 20 to attract 20 points. Mr Choroszynski gave evidence that during the claim period he avoided most activities such as gardening and lifting, and minimised activities such as cooking because he had difficulty standing and sitting. Applying that information to Table 20, I therefore conclude that during the claim period, Mr Choroszynski would appropriately be allocated 20 impairment points from Table 20.
54. In relation to Mr Choroszynski’s depression with anxiety, the evidence is that this condition causes minimal interference with functioning and would attract a rating of nil points under Table 6.
Does Mr Choroszynski have a continuing inability to work or retrain?
55. At the time of the application, s 94(2) of the act provides that for a person to be considered to have a continuing inability to work:
·The impairment is of itself sufficient to prevent the person from doing any work within the next 2 years, and
·either,
othe impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years, or
oif the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
56. Work is defined by s 94(5) of the Act as work of at least 30 hours per week, at or above the relevant minimum wage, that exists in Australia, even if not locally accessible by the person.
57. Ms White indicated in her report that even with intervention Mr Choroszynski was incapable of working more than the two years following the claim period. The Secretary does not dispute that Mr Choroszynski has a continuing inability to work and satisfies s 94 of the Act.
58. Ms White did not address the question of whether Mr Choroszynski could undertake educational or vocational training, however it appears that she concluded that Mr Choroszynski would be unable to work more than 22 hours per week in any event due to the severity of his chronic arthritis.
59. For these reasons I find that during the claim period Mr Choroszynski has an inability to work.
CONCLUSION
60. Mr Choroszynski’s conditions have been diagnosed, treated and stabilised by the operative period around 30 June 2006. He had an impairment rating of 20 points. His impairment resulted in a continuing in ability to work as defined in section 94 of the Act. Consequently Mr Choroszynski was entitled to receive the DSP from 30 June 2006.
FINDINGS OF THE TRIBUNAL
61.I set aside the decision under review and in substitution find that Mr Choroszynski is qualified for disability support pension from 30 June 2006.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ............................[Sgd]...................................................
Elizabeth Young, Research AssociateDate/s of Hearing 26 August 2008
Date of Decision 17 September 2008
The Applicant was self represented
For the Respondent Ms M Brazier, Departmental advocate
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