De Groot and Secretary, Department of Families, Housing, Community Services and Indigenous Affaris

[2008] AATA 332

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 332

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/0834   

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK de GROOT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date24 April 2008

PlaceSydney

Decision Decision under review affirmed.

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

Dr J D Campbell
  Member

CATCHWORDS     

Social Security – Disability Support Pension – Alcohol and Marijuana Dependence – Issue of Fully Diagnosed, Treated and Stabilised – Decision Affirmed.

LEGISLATION

Social Security Act 1991, Section 94, Schedule 1B, Impairment Tables

Social Security (Administration) Act 1999, Sections 41, 42, Schedule 2, Clause 3, Clause 4(1)

REASONS FOR DECISION

24 April 2008                        Dr J D Campbell, Member

1.        Mr de Groot lodged a claim for Disability Support Pension (“DSP”) on 21 November 2005, in which he detailed alcoholism as a disability.  In an accompanying treating doctor’s report dated 14 November 2005, Dr Sinn stated that Mr de Groot’s diagnosis was alcoholism, typified by regular alcohol over-indulgence with associated recurrent diarrhoea and abdominal pain, joint pains, labile moods and feeling de-motivated.

2.      Mr de Groot’s claim was rejected by Centrelink on 5 January 2006, on the basis that the medical conditions could not be rated under the Impairment Tables.

3.      On 25 February 2006, Mr de Groot was assessed by Dr Paul, a medical adviser at Health Services Australia.  Dr Paul considered that Mr de Groot was suffering from alcoholism and marijuana abuse, with dependence well established and with long absences from work.  Dr Paul noted that Mr de Groot had significant affects from regular abuse of alcohol and/or drugs, that there were limitations on his reliability, he had little motivation and had limited work options.  Dr Paul considered that Mr de Groot needed substance abuse counselling, psychological counselling and psychiatric services and treatment, as well as assistance to find work.  Dr Paul considered Mr de Groot’s conditions temporary as he had not had reasonable treatment, in that he has had no professional support when attempting to control his dependence.  (T23)

4.      On 30 March 2006, Mr de Groot’s claim was further considered by an authorised review officer and his claim was rejected.  On 16 June 2006, the Social Security Appeals Tribunal affirmed the decision to reject Mr de Groot’s claim for DSP.  I note, in the latter decision, a recommendation was made for a Centrelink Social Worker or Psychologist to assess and assist Mr de Groot in receiving early placement in a Personal Support Program, and/or an appropriate drug and alcohol rehabilitation program.

Issues

5.      The relevant issues in this matter are:-

a)What, if any, are the impairments suffered by Mr de Groot at 21 November 2005 or within 13 weeks thereafter?

b)What is the assessment of those impairments pursuant to the Schedule 1B Impairment Tables?

c)Does the assessment amount to 20 or more points?

d)Does Mr de Groot have a continuing inability to work?

e)Does Mr de Groot qualify for Disability Support Pension?

Decision

6.      For the reasons stated later in this decision, I find that:-

a)Mr de Groot’s impairments are chronic alcohol dependency and chronic marijuana dependency.

b)No assessment can be made under the Impairment Tables, as Mr de Groot’s impairments are not treated and stabilised.

c)The assessment does not amount to 20 points or more.

d)Not considered, as Mr de Groot does not satisfy the criteria nominated in section 94(1)(b) of the Act.

e)Mr de Groot does not qualify for disability support pension, in that he fails to satisfy section 94(1)(b) of the Social Security Act 1991 (“the Act”) .

Evidence from Mr de Groot

7.      Mr de Groot stated he began drinking and smoking at age 15 in New Zealand.  Mr de Groot stated that he came to Australia at age 21 and shortly after secured a job with the Federal Civil Aviation.  Mr de Groot stated that his supervisor, at his then workplace, was a heavy alcohol and marijuana user, and that he actively encouraged Mr de Groot to smoke and drink at work, as well as retiring to the hotel at lunch time for an afternoon of drinking.  Mr de Groot stated that over a period of ten years, he was able to keep a reasonable attendance at work and perform his work duties.

8.      Mr de Groot stated that his company relocated to Brisbane, with he remaining in Sydney and being unemployed for nine months.  Mr de Groot stated that he then secured employment with Schering as a packer for two years, during which he was able to indulge his habits of smoking and drinking at work.  Mr de Groot stated that he was then unemployed for two years before securing a job with Central Sydney Area Health Service, where he remained for 10 years while maintaining his drinking and smoking habits.  Mr de Groot stated that he had an eating disorder for about 15 years and that he is on a strict vegetarian dietary regime.  An upper endoscopy, at Royal Prince Alfred Hospital in 2000, reported Mr de Groot was not demonstrating any issue of significance, with his stomach and gout problems being suggested as arising from his drinking.

9.      Mr de Groot stated that he had increasing problems associated with his alcohol and drug consumption, which included collapsing in the street and disciplinary reports from his supervisor in December 2005, about his continuing absenteeism from work.

10.     Mr de Groot stated he left school at age 15, and secured employment as an office boy for a couple of years, followed by a job as a clerk in a shipping company for two years, then as a bank teller and working in a printing and die cutting factory for a couple of years.

11.     Mr de Groot also related two events that he experienced prior to leaving New Zealand, and which he said were instrumental in his desire to leave New Zealand.  One event was when his best friend drowned when Mr de Groot was age 15.  The second event he described happened just prior to him leaving New Zealand, and involved Mr de Groot being robbed and assaulted by a transvestite, after he had assisted a lady (he believed) with a broken-down car.

12.     Mr de Groot stated that he started to drink alcohol and using marijuana at age 15 and, by the time of his first employment in Australia, he would consume 10 schooners of beer a day and smoke 10 to 12 cones a day, with heavier consumption on the weekends.  Mr de Groot stated that he has a number of arrests for driving under the influence and possession, and has served six months periodic detention for repeated offences of driving under the influence.  Mr de Groot stated that both his alcohol consumption and marijuana use have continued at the same level to this time, although it is tempered, from time to time, because of shortage of money, as he is now unemployed, with his unemployment status continuing for the past few years.

13.     Mr de Groot admitted that he had been referred to drug and alcohol clinics and had never turned up; that it is his intention to drink and smoke at the same level that he currently does; that he is not much interested in work and that he is really not much interested in attending a drug and alcohol clinic.  Mr de Groot considers it would be more convenient to receive a DSP as he would not have to look for work, as he really is not much interested in seeking work.

Further Medical Opinion

14.     Mr de Groot was referred to Dr Lovric for assessment of his psychiatric conditions.  In a report dated 30 January 2003, Dr Lovric, a consultant psychiatrist, detailed the following:

·Mr de Groot’s alcohol dependency was fully diagnosed by 21 November 2005.

·Mr de Groot had a marijuana dependency at the same time.

·There is no other psychiatric disability apparent.

·Mr de Groot has had no treatment for either dependency.

·That there are treatments available for both dependencies if Mr de Groot is compliant.  Such treatments involve inpatient detoxification, simultaneous counselling and psycho-education.

·That without treatment Mr de Groot’s impairments are permanent for the foreseeable future.

·That with reasonable treatment, there could be significant functional improvement within the next two years, as he is currently not fully stabilised.

Considerations and Findings

15.     There is little factual dispute in this matter.  Mr de Groot admits to his continuing excessive use of both alcohol and marijuana over many years.

16.     I conclude that Mr de Groot does suffer from the following impairments, namely:

·alcohol dependence

·marijuana dependence

17.     In so finding, I rely upon Mr de Groot’s evidence and the opinions of his treating doctor, Dr Paul and Dr Lovric.  I am satisfied that Mr de Groot satisfies section 94(1)(a) at the time of claim.

18.     In turning to assessment of the two impairments, I note that the introduction to the Schedule 1B Impairment Tables requires an impairment to be permanent before a valid assessment can be performed.  To be permanent, the impairment must be fully diagnosed, treated and stabilised.

19.     In considering whether a condition is fully diagnosed, treated and stabilised, one must look at:

·what treatment or rehabilitation 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.

20.     Further, I note that 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 be reliably 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.

21.     In addressing Mr de Groot’s dependencies, I note that in essence he has had no treatment for either.  I observe that Dr Lovric has suggested there are appropriate treatments for both conditions, if Mr de Groot is compliant.  Further, Dr Lovric suggests that with such treatments, there could be significant functional improvement within two years.

22.     While I suspect that Mr de Groot is ambivalent about undertaking such treatment programs, that is a matter for him.  On the evidence before me, I consider that Mr de Groot’s two conditions are not treated and stabilised, as there is reasonable medical treatment available that will lead to significant functional improvement within two years.  I further note that such treatment is feasible and locally available.

23.     The only issue is whether Mr de Groot wishes to avail himself of such treatment.  I have not been made aware of any compelling reasons as to why he should not.

24.     In the circumstances, I consider Mr de Groot’s conditions are not permanent and, therefore, no assessment of his two conditions should be undertaken pursuant to an appropriate Impairment Table.

25. In such circumstances, I conclude that Mr de Groot does not satisfy section 94(1)(b) of the Act and, as such, does not qualify for disability support pension.

26.     I consider it unnecessary to address the issue of continuing inability to work.

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:         ..............[SGD]...........................................................
  Associate

Date/s of Hearing        23 November 2007 and 14 March 2008
Date of Decision        24 April 2008
Appearance for the Applicant        Self-represented                 
Solicitor for the Respondent           Ms J Furner