Clark and Secretary, Department of Family and Community Services

[2004] AATA 1018

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1018

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/620

GENERAL ADMINISTRATIVE  DIVISION

Re:NATHANIEL DAVID JAMES CLARK

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             29 September 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points ‑ time of application ‑ whether condition diagnosed, treated and stabilised ‑ continuing inability to work

Social Security Act 1991 s 94(1), s 94(2), s 94(3), s 95(5), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

29 September 2004  Regina Perton, Member

1.      This is an application by Mr Nathaniel David James Clark (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 28 April 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 20 November 2003, to refuse an application for disability support pension (DSP) because the applicant did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).

2.      At the hearing on 17 September 2004, the applicant represented himself.  Ms Kayren Paul, a Centrelink advocate, represented the respondent. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T19) and three medical reports filed by the applicant (Exhibits A1‑A3).  The reports filed by the applicant are as follows:

A1Dr Norman J. Roth, dated 9 September 2004

A2Dr Norman J. Roth, dated 29 June 2004

A3Dr Fintan B. Harte, dated 18 June 2004

BACKGROUND

4.        The applicant was born on 7 January 1972 and is 32 years old.  He was diagnosed with HIV infection approximately 11 years ago but, despite experiencing various symptoms over the years, worked for almost all that time on a full‑time basis until June 2002.  After June 2002 he was engaged in casual employment for two years.

4.      On 2 October 2003, the applicant lodged a claim for DSP, which was refused on 20 November 2003 on the basis that the applicant’s impairment was less than the required 20 points under the Impairment Tables and that his condition was temporary rather than permanent.  On 1 March 2004, an Authorised Review Officer (ARO) affirmed the decision on the same basis.   

5.      On 6 May 2004, the SSAT affirmed the decision to refuse the claim for DSP.  The SSAT found that the applicant’s HIV infection was a permanent condition warranting 15 points but that the anxiety and depression from which the applicant suffered could not be assigned impairment points at the relevant time as the condition had not been fully treated.  Hence, the applicant failed to reach the required 20 points.  The applicant filed an application for review of the SSAT decision with this Tribunal on 21 May 2004.

6.      Following the decision to reject the applicant’s claim for DSP, the applicant sought psychiatric treatment for his anxiety and depression on 18 June 2004 and lodged another claim for DSP.  Given that he was now undergoing specialist treatment for this condition, it was considered fully diagnosed, treated and stabilised.  Therefore, Centrelink assigned 10 points for anxiety and depression, which took the applicant over the 20 point threshold.  As a result, he has been receiving DSP since 7 July 2004. 

7.      The issue before the Tribunal is whether the applicant should have been given an impairment rating of at least 20 points under the Impairment Tables at the time of his original application for DSP and whether he should have been paid DSP between 2 October 2003 and 6 July 2004.   

EVIDENCE

8.      The applicant told the Tribunal that he has been under the care of Dr Roth for four or five years in relation to his HIV infection.  Dr Roth prescribed anti‑depressant medication as well as natural therapies for the applicant’s anxiety and depression.  He has now discontinued the anti‑depressant medication as its side effects were debilitating.  The applicant stated that although Dr Roth is not a psychiatrist, he has specialised knowledge in relation to HIV and its side effects, which include anxiety and depression.

9.      The applicant stated that Dr Roth, in his medical report to Centrelink which accompanied the application for DSP, had indicated the applicant was suffering from conditions including anxiety and depression and was unable to work.  The applicant stated that the Centrelink doctor had only seen him briefly.  The applicant indicated that he had moved back to his parents’ home and giving up his independence and a somewhat difficult relationship with his father had added to his stress level.  The applicant stated that he was now seeing Dr Harte, a psychiatrist, on an ongoing basis.

10.     The applicant said that he had been on Newstart Allowance (NSA) at the time of the application for DSP.  The DSP is higher than NSA and this was the reason why he was continuing with his application, despite now receiving DSP.  He also believed that Dr Roth’s report provided at the time of his first application should have been sufficient for him to obtain DSP because he had been diagnosed with anxiety and depression long before then.

11.     As part of his application for DSP, the applicant was required to respond to questions concerning his medical condition.  His responses indicated that he has no problem with sitting, driving a car, operating everyday appliances, speaking or taking care of himself.  He indicated that he sometimes has problems with a number of activities including walking, lifting, carrying, concentrating, remembering and interacting with others and that he often had trouble sleeping.

12.     The Tribunal had before it a number of medical reports.  Dr Roth, in a report to Centrelink dated 26 September 2003 (T5), indicated that his client suffered from two conditions, HIV infection and anxiety/depression.  He stated that the applicant had been HIV positive for over 10 years and that his symptoms included sinusitis, lethargy, weight loss, muscle weakness and night sweats for which he was receiving antiviral combination treatment and antibiotics.  Dr Roth indicated that his patient would be unable to cope with physical work or stress for more than 24 months.  He also indicated that within the next 2 years, the effect of this condition on the applicant’s ability to function was expected to fluctuate and was uncertain.  In relation to anxiety and depression, he indicated that the applicant’s reactive depression and anxiety which arise out of his HIV diagnosis fluctuates in severity.  He indicated that the applicant’s current treatment consisted of counselling and that future/planned treatment was uncertain; depends on progress.  He stated that this condition would persist for more than 24 months.

13.     The applicant was assessed by Dr Peter Tutton of Health Services Australia at the respondent’s request.  In his report dated 20 October 2003 (T8), Dr Tutton stated that:

Mr Clark is a 31 year old sales assistant who is seeking a DSP on account of HIV infection and anxiety/depression.  He left his last job about 12 months ago “because of allergies”.  He was diagnosed with HIV 11 years ago and suffers from recurrent infections and fatigue.  He has some good days when he could “work all days as a labourer” and bad days when he can hardly get out of bed.  He is cared for medically by a GP who unofficially specialises in HIV but has not been referred to any of the hospital clinics that specialise in this.  Having not been fully investigated he cannot be regarded as fully diagnosed, fully treated and stabilized.  He also suffers from anxiety/depression for which he has had no treatment.  He is temporarily unfit for full time open work pending full diagnosis and expert treatment of his condition.

14.     Dr Roth prepared a further report for DSP purposes on 18 March 2004 (T16), in which he described in greater detail the impact of, and treatment for, anxiety/depression.  He indicated that while the applicant’s reactive depression and anxiety fluctuates in severity it was, at that time, worse due to inability to tolerate antidepressant medication.  He indicated that as well as counselling, the applicant has been prescribed anti‑depressant medication, but could not tolerate it due to severe headaches and other side effects.  In his report of 26 September 2003 (T5), Dr Roth had given his Prahran clinical address only but in the later report (T16), he indicated that he is also a visiting sexual health physician at the Alfred Hospital.  Dr Roth also provided a medical certificate for Centrelink purposes dated 16 April 2004 (T16) in which he indicated that the applicant was unfit for work/study from that date until 16 July 2004. 

15.     Dr Roth prepared another report for Centrelink dated 29 June 2004 (Exhibit A2).  Much of its content is similar to his earlier reports but it included additional information that the applicant suffered from osteoarthritis of cervical spine for which he undertook exercise and physio.

16.     Dr Roth, in a letter dated 9 September 2004 (Exhibit A1), stated that the applicant:

…has been suffering from severe, disabling anxiety and depression since 1999, as stated in my Treating Doctor’s Report for Centrelink dated 29 June 2004, and as reiterated on successive Centrelink Medical Certificates since 10 January 2003.

17.     Dr Harte, psychiatrist, prepared a Treating Doctor’s Report for Centrelink on 18 June 2004 (Exhibit A3), in which he indicated that the applicant had been his patient since 18 June 2004.  Dr Harte indicated that the applicant suffered from anxiety and depressive symptoms in the context of HIV.  His current symptoms included marked social anxiety, lowered self esteem, lowered mood with marked lethargy, insomnia and poor concentration.  His current treatment was psychotherapy with Dr Harte, noting that a trial of anti‑depressant medication was unsuccessful due to the side effects of headache and nausea.  Dr Harte indicated that the psychiatric condition was likely to persist for more than 24 months.

CONSIDERATION OF THE ISSUES

18.     Section 94 of the Act sets out how a person qualifies for DSP:

94.(1)  A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

(c)       one of the following applies:

(i)the person has a continuing inability to work;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

…

94.(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)       either:

(i)the 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

(ii)if 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.

94.(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

…

94.(5)  In this section:

…

“work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

19. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

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.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  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 2 years.

…

20. When deciding whether a person qualifies for the DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. In this case, the Tribunal must consider whether the applicant qualified for the DSP either on 2 October 2003 or at a date before 1 February 2004 (the relevant period).

21. Ms Paul submitted that during the relevant period, the applicant did not have an impairment of 20 points or more under the Impairment Tables and therefore, he did not satisfy s 94(1) (b) of the Act. She submitted that even though the applicant may have been suffering from depression at the date of application, there is no evidence that the condition had been treated and stabilised before that date. Ms Paul stated that Dr Roth does not specialise in psychiatry and the applicant’s depression needed to be assessed separately from the applicant’s HIV infection under the Impairment Tables.

22.     Based on the documentary evidence and the oral evidence of the applicant, the Tribunal accepts that the applicant suffers from HIV infection and anxiety and depression now, as he did at the time of his second application for DSP.  It notes that the applicant has been receiving DSP since 7 July 2004. 

23.     The Tribunal accepts that Dr Roth has expertise in treating patients with HIV infection and accepts that his diagnosis of the applicant’s anxiety and depression is sound.  However, his report dated 26 September 2003 described counselling as the treatment being provided at that time for the condition.  His report dated 18 March 2004 (T16) indicated that the applicant had been prescribed anti‑depressant medication but that this treatment had been unsatisfactory due to the side effects.  The June 2004 report of Dr Harte said that he is treating the applicant through psychotherapy, a treatment which the applicant indicated was helpful to him and which he is continuing.    

24.     The Tribunal finds that although the condition of anxiety and depression had been diagnosed at the time of application, it had not been treated and stabilised.  Therefore, no points can be allocated for the applicant’s psychiatric condition during the relevant period. 

25.     Table 20 of the Impairment Tables is the relevant item for persons suffering from HIV infection:

TABLE 20.      MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (IE 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 (ie. 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.

26.     In relation to the applicant’s HIV infection at time of application for DSP, the Tribunal prefers Dr Roth’s assessment of the applicant’s condition to that of Dr Tutton.  The applicant had been suffering from the condition for a decade at the time of application and had been under the care of Dr Roth, a general practitioner who also works at the Alfred Hospital’s HIV/AIDS unit during that time.  Based on the applicant’s evidence and that of Dr Roth, the Tribunal finds that, at the date of application, the applicant suffered from a potentially life‑threatening condition which interfered with his daily activities but he was able to undertake self‑care.  The Tribunal finds that the applicant’s HIV infection had been diagnosed, treated and stabilised and was therefore permanent for the purpose of assigning an impairment rating and hence warrants 15 points. 

27. Therefore, the Tribunal finds that, during the relevant period, the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). The decision to refuse the claim for DSP was correct.

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  17 September 2004

Date of Decision:  29 September 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Ms Kayren Paul, Centrelink