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

[2023] AATA 2069

Cousins and Secretary, Department of Social Services (Social services second review) [2023] AATA 2069 (18 July 2023)

Division:GENERAL DIVISION

File Number:          2022/4097

Re:Kimberley Cousins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:18 July 2023

Place:Melbourne

The decision under review is affirmed.

.............................[SGD]...........................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – disability support pension – whether the Applicant has a physical, intellectual or psychiatric impairment – whether any of the Applicant’s impairments attracts 20 points or more under the impairment tables – whether the Applicant has a continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Dr L Bygrave, Member

18 July 2023

INTRODUCTION

1. Mr Kimberley Cousins submitted a claim for disability support pension on 25 May 2021. This claim was rejected by Services Australia, both initially and on review, on the basis that Mr Cousins did not meet the requirements in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

2. Mr Cousins applied for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 14 April 2022, the AAT1 affirmed the decision of Services Australia.

3. On 23 May 2023, Mr Cousins made an application for review of the AAT1 decision to the General Division of the Tribunal.

4. The matter was heard by the Tribunal in Melbourne on 3 July 2023; Mr Cousins attended the hearing and gave oral evidence by teleconference. At the hearing, Mr Cousins referred to additional medical reports not contained in the documentary evidence and, in accordance with a Direction made by this Tribunal, he filed further medical evidence on 5 July 2023 and the Respondent filed supplementary written contentions in response on 12 July 2023.

   RELEVANT LEGISLATION

   Qualification for disability support pension

5. The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and include the requirement for Mr Cousins to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

6. Mr Cousins must satisfy the qualification criteria on 25 May 2021, the date he made his claim for disability support pension, or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the qualification period).

   Rules for assigning impairment ratings

7. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

8. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.

9. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

10. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider whether it has been fully diagnosed by an appropriately qualified medical practitioner; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

11. Fully stabilised means it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

12. Reasonable treatment is described as treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person: subsection 6(7) of the Impairment Tables Determination.

    CONSIDERATION

13. The medical evidence shows Mr Cousins sustained a traumatic brain injury in 2018 and has been diagnosed with chronic brain trauma, upper body injuries and neck/back pain, anxiety and depression, diabetes, hypothyroidism and a chronic cough. Based on the evidence, the Secretary accepts – and I find – that Mr Cousins had physical and psychiatric impairments during the qualification period and he therefore satisfies paragraph 94(1)(a) of the Act.

14. It follows that the issues for determination in this matter are whether, during the qualification period, Mr Cousins had:

    ·an impairment rating of 20 points or more under the Impairment Tables as required by paragraph 94(1)(b) of the Act; and

    ·a continuing inability to work as required by paragraph 94(1)(c) of the Act.

    Issue – does Mr Cousins have an impairment rating of 20 points or more under the Impairment Tables?

    Chronic brain trauma

15. Mr Cousins sustained a ‘severe traumatic brain injury’ on 3 March 2018 when he fell from a ladder onto concrete.[1] He was admitted to hospital and suffered a two week period of post traumatic amnesia. After his discharge from hospital in late March 2018 and until August 2018, Mr Cousins engaged in intensive rehabilitation with an occupational therapist and speech pathologist. Concluding consultation notes by a speech pathologist on 14 August 2018 stated Mr Cousins demonstrated a ‘significant improvement w[ith] auditory memory, auditory comprehension & verbal explanation… [He had] WNL [within normal limits] high level language skills, [increased] insight, self-correction & monitoring… appropriate / timing processing skills …’.[2]

    [1] Exhibit ST-ST2, 53.

    [2] Exhibit ST-ST2, 135.

16. A report by Mr Hui Lau (neurosurgeon) dated 18 March 2019 set out Mr Cousins’:

    injuries included a base of skull fracture and a right parietal suboccipital region skull fracture, traumatic subdural and subarachnoid haemorrhage, non-occlusive venous sinus thrombosis at the right transverse sigmoid junction. All these injuries where [sic] managed conservatively.

    His most recent CT scans shows resolution of the venous sinus thrombus. No further imaging is indicated.

    He has anosmia following the injury and we will have to wait and see if this recovers over time. There is a chance that this could be a permanent deficit.[3]

    [3] Exhibit T-T3, 16.

17. Dr Vincent Thong (general practitioner) completed medical certificates: on 6 November 2020, he stated Mr Cousins’ brain trauma was ‘chronic’[4]; and on 23 December 2021, he described Mr Cousins’ symptoms due to brain trauma as ‘poor concentration, poor focus, poor memory’.[5] Dr Thong also provided oral evidence to Services Australia on 3 September 2021. He said Mr Cousins’ brain injury was ‘permanent’, ‘significant improvement [was] not expected’ and no further treatment was planned, and described the following symptoms and functional impacts:

    Permanent residual effects from brain injury, loss of sense of smell and taste and significant impact on mood, constant anxiety, reports poor memory and inability to focus, experience tinnitus, also constant neck and back pain and poor endurance for physical activity.[6]

    [4] Exhibit T-T20, 72.

    [5] Exhibit T-T20, 74.

    [6] Exhibit T-T13, 44.

18. At the Tribunal hearing, Mr Cousins explained that he has no memory of the time he was in hospital following his brain injury as he was in an induced coma. Mr Cousins said he was strongly focussed on completing rehabilitation during 2018 and put on a ‘brave face’ in order to regain his drivers licence. However, he disagreed with the accuracy of the notes made by the speech pathologist on 14 August 2018 (set out above at paragraph 15) and said he continues to have problems thinking (his brain is ‘scrambled’) and finding words, his short-term memory ‘is terrible’ and he suffers from insomnia. Mr Cousins said that he returned to work about six to eight months after his traumatic brain injury but described this as making ‘an appearance’ at the coffee business he operated with the assistance of staff. He said he was unable to recall coffee orders and/or the names of close friends due to his short-term memory loss and it was ‘humiliating’. He said his loss of his short-term memory has been particularly difficult as he previously worked as a builder and an architect, and had good communication skills.

19. Based on the medical evidence, I am satisfied Mr Cousins’ chronic brain injury was fully diagnosed, fully treated and fully stabilised during the qualification period. I have had regard to ‘Table 7 – Brain Function’ of the Impairment Tables Determination and find the medical evidence shows Mr Cousins has a mild functional impact resulting from a neurological or cognitive condition and assign 5 points. Consistent with findings in the Health Professional Advisory Unit report dated 9 September 2022 (HPAU report), I am satisfied the medical evidence shows Mr Cousins has mild difficulties with (a) memory and (b) concentration. I find there is insufficient medical evidence to show that Mr Cousins’ chronic brain injury has a moderate or higher functional impact in accordance with ‘Table 7 – Brain Function’ of the Impairment Tables Determination.

20. I am satisfied the medical evidence also shows Mr Cousins has experienced loss of taste and smell following his brain injury. Mr Cousins told the Tribunal he understood that loss of taste and smell is not considered under the Impairment Tables Determination, but said this loss has strongly affected his mental health because he operated a coffee business where the senses of taste and smell are critical and, prior to his brain injury, he was a self-described ‘foodie’. Unfortunately, as the Impairment Tables do not consider loss of taste and smell, I am unable to assign any impairment points for these conditions.

    Tinnitus

21. Dr Thong described Mr Cousins as experiencing symptoms of tinnitus in medical certificates dated 6 November 2020 and 3 September 2021. Mr Cousins told the Tribunal this condition was related to his traumatic brain injury, and I note that healthcare records dated 8 May 2018 from Mr Cousins’ period of rehabilitation record him having ‘hearing problems’.[7]

    [7] Exhibit ST-ST2, 71.

22. The Introduction to ‘Table 11 – Hearing and other Functions of the Ear’ of the Impairment Tables require that diagnosis of the condition be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist. Mr Cousins confirmed at the hearing that he has seen an ENT specialist and audiologist, but there are no relevant reports or results of an audiological assessment before the Tribunal. For this reason, I am unable to assign any points for this condition.

    Upper body injuries / neck and back pain

23. In his claim for disability support pension, Mr Cousins stated he has ‘upper body damage’ from his fall in March 2018.[8] Dr Thong also reported to Services Australia on 3 September 2021 that Mr Cousins has ‘constant neck and back pain’.[9]

    [8] Exhibit T-T9, 28.

    [9] Exhibit T-T13, 44.

24. At the Tribunal hearing, Mr Cousins described his upper body injuries as a ‘spasticity’ in his ribs and back. He said he has undertaken extensive medical tests including scans, x-rays and blood tests that have not shown any results or reasons for this condition. He has not seen or been referred to any medical specialists. He takes nurofen for the pain.

25. While I accept these conditions have been documented by Dr Thong, I am not satisfied that the medical evidence shows these were fully diagnosed, fully treated and fully stabilised during the qualification period. There is also no medical evidence about the functional impact of these conditions on Mr Cousins. For this reason, I cannot assign any points in accordance with the Impairment Tables Determination.  

    Anxiety and depression

26. A report by Dr Gregory White (consultant psychiatrist) on 14 October 2013 stated that Mr Cousins was referred to him for the purpose of obtaining a clinical opinion regarding his claim for compensation. Dr White concluded that Mr Cousins had ‘developed a Major Depressive Disorder, Single Episode, characterised by low mood and other biological, psychological and social symptoms of depression’ related to a workplace situation.[10] Dr White referred to Mr Cousins having ‘unresolved financial and legal issues’ and noted a ‘risk of a degree of post traumatic embitterment, including a sense of injustice’.[11]

    [10] Exhibit A1, 7.

    [11] Exhibit A1, 9.

27. Dr Michael Papasava (clinical psychologist) provided a psychological report dated 23 June 2014. Dr Papasava opined Mr Cousins ‘developed psychological sequelae in the course of his employment… when he was subjected to a significant number of serious stressors’.[12] Dr Papasava diagnosed Mr Cousins with ‘a major depressive disorder and a panic disorder’, and stated that these conditions:

    have had significant detrimental effects upon Mr Cousins’ emotional, interpersonal, social and occupational functioning and he now requires appropriate psychological treatment…and pharmacological treatment.[13]

    [12] Exhibit T-T8, 22.

    [13] Exhibit T-T8, 26.

28. Mr Cousins told the Tribunal that he saw Dr White on one occasion in 2013 for a medico-legal consultation and had five sessions with Dr Papasava in 2014. He said he also took anti-depressant medications in 2014, but suffered side effects from these and ceased.

29. Dr Bronwyn Coward (clinical neuropsychologist) provided an inpatient neuropsychology report in relation to Mr Cousins for rehabilitation purposes on 22 March 2018, approximately three weeks after his traumatic brain injury. Dr Coward set out a ‘current assessment’ of Mr Cousins, and her conclusion and recommendations included the following:

    At the time of assessment, Mr Cousins’ mood was within normal limits; however, some agitation was observed. If this emotional response continues, he may benefit from intervention from a clinical psychologist. This could be organised by his GP and referred to a clinical psychologist in the community under a mental health care plan. A clinical psychologist with specialisation in brain injury would be optimal.[14]

    [14] Exhibit ST-ST2, 54.

30. Dr Thong provided a medical certificate dated 6 November 2020 that stated Mr Cousins was diagnosed with anxiety and depression from March 2018 and had symptoms of ‘low mood’ and ‘low motivation’.[15] Medical certificates completed by Dr Thong on 23 December 2021, 2 February 2022 and 28 April 2022 also referred to Mr Cousins’ diagnosis of anxiety and depression, with a date of onset of 23 December 2013. Dr Thong described Mr Cousins as suffering symptoms of ‘tiredness, poor concentration, low mood and motivation, mood swings’.[16] A medical letter from Dr Thong dated 13 July 2022 referred to the state of Mr Cousins’ conditions between 25 May 2021 and 24 August 2021 (the qualification period) and stated he had suffered ‘anxiety and depression since March of 2018’ and, as far as he is aware, Mr Cousins has ‘complied with all treatments’.[17]

    [15] Exhibit T-T20, 72.

    [16] Exhibit T-T20, 74-76.

    [17] Exhibit ST-ST3, 162.

31. At the hearing, Mr Cousins confirmed he saw Ms April Casswell (psychologist) from October 2020 to March 2021. He said that at the time he was depressed, uninterested in anything, socially isolated and had difficulties concentrating. As set out in paragraph 20, he said his loss of taste and smell negatively affected his mental health as it impacted on his ability to operate his coffee business and enjoy food. Mr Cousins said he did not see Ms Casswell after March 2021 because she moved to another clinic and he has not seen another psychologist as he does not want to tell his life story again. I note that there is no written report before the Tribunal from Ms Casswell; however, the HPAU report noted Ms Casswell opined that Mr Cousins’ ‘anxiety and depression was related to his legal stressors and he did not have symptoms of clinical depression’.[18]

    [18] Exhibit ST-ST3, 191.

32. Mr Cousins provided oral and (post-hearing) written submissions about his life and family experiences, financial issues and business problems. I accept – on the face of this evidence – that these issues appear to continue to affect his well-being. Mr Cousins stated in his oral and written submissions that he suffers from post-traumatic embitterment disorder related to injustices that he has experienced. He referenced Dr White’s report that stated he has a ‘risk of a degree of post traumatic embitterment’. In the context of Dr White’s report, which formally diagnosed Mr Cousins with ‘a Major Depressive Disorder, Single Episode’, I do not accept this statement by Dr White was a diagnosis of a mental health condition.

33. The Introduction to ‘Table 5 – Mental Health Function’ of the Impairment Tables requires that a diagnosis of a mental health 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)’. Consequently, the question is whether the diagnosis made by Dr White in 2013 of ‘a Major Depressive Disorder, Single Episode’ and/or the diagnoses made by Dr Papasava in 2014 of a ‘major depressive disorder and a panic disorder’ in the context of legal and business stressors can be used as a diagnosis of Mr Cousins’ mental health during the qualification period.

34. The HPAU report opined that ‘the diagnosis of a major depressive disorder and panic attacks made by Dr Papasava in June 2013 [sic] is not sufficiently contemporary to be relevant for this DSP [disability support pension] claim’.[19] I must agree. As Dr Thong is a general practitioner, I cannot rely of his diagnosis of anxiety and depression (with dates of onset as either December 2013 or March 2018). I further note that Dr Coward – a clinical neuropsychologist – assessed Mr Cousins’ mood as ‘within normal limits’ in March 2018. She also recommended that Mr Cousins could benefit from seeing a clinical psychologist who specialises in brain injury, which has not occurred.

    [19] Exhibit ST-ST3, 190.

35. While Mr Cousins outlined an extensive list of issues to the Tribunal and referred to the effect of his chronic brain trauma (and associated losses) on his mental health, I am unable to make a finding that Mr Cousins’ mental health condition was fully diagnosed, fully treated and fully stabilised in the qualification period. As I do not find the condition was permanent, I am unable to assign points in accordance with the Impairment Tables Determination.

    Other conditions – diabetes, hypothyroidism and chronic cough

36. Mr Cousins was diagnosed with type 2 diabetes during his admission to hospital in March 2018. Dr Thong stated in a medical certificate on 6 November 2020 that Mr Cousin suffers symptoms of ‘tiredness, lethargy, weight gain’ and the condition of diabetes is treated with ‘medication including insulin’.[20] Mr Cousins confirmed to the Tribunal that he has seen an endocrinologist and had a review of his medication, and he suffers ‘sudden’ impacts from changes in his blood sugar levels when he has not eaten enough natural sugars. Based on the evidence, I am satisfied that Mr Cousins’ diabetes was fully diagnosed, fully treated and fully stabilised during the qualification period. However, consistent with the HPAU report, I find there is insufficient supporting medical evidence about the functional impact of Mr Cousins’ diabetes to determine an appropriate impairment rating.

    [20] Exhibit T-T20, 72.

1. Mr Cousins has been diagnosed with hypothyroidism, which is treated with thyroxine. Mr Cousins told the Tribunal this condition is regularly monitored but does not cause him any functional impairment. I therefore assign no points for this condition in accordance with the Impairment Tables Determination.

2. Mr Cousins stated in his application for review to the General Division that he has had ‘a chronic cough for 4-6 years’ and it has been ‘difficult to go out’ and he has ‘been discriminated and harassed due to Covid (coughing)’.[21] Mr Cousins told the Tribunal at his hearing that this cough has now resolved. I therefore assign no points for this condition under the Impairment Tables Determination. 

   [21] Exhibit T-T1, 1.

   CONCLUSION

3. Based on the evidence, I am not satisfied that Mr Cousins met the requirement in paragraph 94(1)(b) of the Act during the qualification period because his impairments were not rated at 20 or more points under the Impairment Tables.

4. As I find Mr Cousins did not meet the disability support pension criteria in paragraph 94(1)(b) of the Act, it is not necessary to consider whether he had a continuing inability to work as required by paragraph 94(1)(c) of the Act.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 18 July 2023

Date of hearing:	3 July 2023
Date final submissions received:	12 July 2023
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Adam Slevison
Solicitors for the Respondent:	Australian Government Solicitor