Deidre Saw and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 157
•14 March 2012
[2012] AATA 157
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4266
Re
Deidre Saw
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 14 March 2012 Place Brisbane (heard in Cairns) The decision is affirmed.
........................................................................
Deputy President P E Hack SC
Catchwords
SOCIAL SECURITY – benefits and entitlements - disability support pension – statutory criteria of impairment – psychiatric and complex regional pain syndrome conditions – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94(1), Schedule 1B
REASONS FOR DECISION
Deputy President P E Hack SC
14 March 2012
INTRODUCTION
This is an application by Ms Deidre Saw to review a decision of Centrelink, on behalf of the respondent Secretary, to reject Ms Saw’s claim for disability support pension. Ms Saw says, and the Secretary accepts, that she suffers from three conditions – depression, complex regional pain syndrome and osteoporosis of both knees.
Ms Saw made her claim on 7 February 2011 and, by operation of Clause 4 – Schedule 2, Part 2 of the Administration Act, it is the state of Ms Saw’s conditions at that time or in the succeeding 13 weeks that must be considered. The claim was rejected by Centrelink on 3 March 2011. That decision was affirmed on internal review and by the Social Security Appeals Tribunal. The Secretary says that the decision ought be affirmed because Ms Saw does not satisfy the statutory criteria.
THE LEGISLATION
Those criteria are set out in the Social Security Act 1991 (Cth). By virtue of s 94(1) of that Act a person is qualified for DSP if, relevantly,
(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;
…
The reference to Impairment Tables is a reference to the Tables that comprise Schedule 1B to the Act. The Introduction to the Tables explains that they,
are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work.
They do so by assigning ratings based on the severity of the impact of the medical condition on normal function.
It is relevant, given the issues raised, to make further reference to the Introduction and, in particular, the notion of “diagnosed, treated and stabilised”. The following passages bear upon that issue:
4.… For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised….
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.
6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
owhat treatment or rehabilitation has occurred;
owhether treatment is still continuing or is planned in the near future;
owhether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
otreatment that is feasible and accessible i.e., available locally at a reasonable cost;
owhere 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.
…
As will appear, it is not necessary to consider the meaning of the expression “continuing inability to work”.
THE IMPAIRMENTS
Depression
Ms Saw says that she has suffered from symptoms of depression intermittently for a number of years. Among the material is a report from her general practitioner from September 2009 in which the condition is described as “moderate” and treated by anti-depressive medication. Ms Saw had six counselling sessions with a psychologist in 2009 and early 2010 but has not been treated, except by medication, since then. She says of the depression that she is “fine when she is on the medication” although she reported that her symptoms have increased of recent times.
In February 2011 Ms Saw was seen by Dr Martin Dunlop, a specialist in rehabilitation medicine. He expressed the opinion that Ms Saw would benefit from counselling and cognitive behaviour therapy. Ms Saw told the Social Security Appeals Tribunal that she was coping with her depression with the medication.
I am far from satisfied that the condition of depression has been fully treated and stabilised but, even if it had been, I am not satisfied that its effect on Ms Saw is such as to warrant the assignment of any impairment points under Table 6, dealing with psychiatric impairment. It will suffice to set out the introduction to that table and the descriptions for nil, ten and twenty points on Table 6.
TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
…
On Ms Saw’s description of her symptoms they fall to be described as mild rather than moderate.
Complex regional pain syndrome
This condition results from a fall that Ms Saw suffered in June 2010. She sustained a fracture of the left ankle which was relatively minor in nature but which has now developed into complex regional pain disorder. Dr Dunlop noted that the condition prevented Ms Saw from weight bearing on her left foot and from standing. Ms Saw described a dull ache on the outside of her left ankle with particular pain for 15 to 20 minutes three to four times per week. More recently the frequency of pain has increased. She takes over the counter pain killers and the outside of her ankle is always swollen. The injury, she says, has taken her from a very active person to one who can only walk slowly and with difficulty. It is apparently becoming more difficult for her to cope.
This impairment has been considered to date by reference to Table 20, dealing with miscellaneous conditions including chronic fatigue or pain. Relevantly, it provides,
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.
RatingCriteria
NILControlled 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 e.g. 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.
The Social Security Appeals Tribunal concluded that Ms Saw’s condition warranted a rating of 15 points on this Table. The Secretary accepts that rating. I consider that it is appropriate to assign a rating of 15 points to the condition. A rating of 20 is certainly not warranted.
Ms Saw’s final condition, osteoporosis of the knees, started to affect her in the last couple of months. Accordingly it cannot be considered for the purposes of this application since it was not affecting her at the time of her claim or within 13 weeks thereafter.
The result is that Ms Saw does not satisfy the requirement of 20 points on the impairment tables. The decision under review will be affirmed.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
........................................................................
Associate
Dated 14 March 2012
Date(s) of hearing 23 February 2012 Applicant In person Advocate for the Respondent Ms J Forsyth, Legal Services Division, Department of Human Services
0
0
0