Dodd and Secretary, Department of Social Services (Social services second review)
[2020] AATA 3371
•2 September 2020
Dodd and Secretary, Department of Social Services (Social services second review) [2020] AATA 3371 (2 September 2020)
Division: GENERAL DIVISION
File Number(s): 2019/2772
Re:Vicki Dodd
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member G Hallwood
Date:2 September 2020
Place:Adelaide
1.The decision under review is remitted to the Respondent for reconsideration in accordance with the Direction that:
(a)the Applicant’s claim for disability support pension is to be reassessed on the basis that she satisfies ss 94(1)(a)-(c) of the Social Security Act 1991 and has done so since the date of claim, being 13 October 2016. This means that subject to all other requirements of the Social Security Act 1991 being met, Ms Dodd is eligible to receive the disability support pension from the date of claim. This means the application is successful.
...........................[Sgnd]........................................
Member G Hallwood
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant had a continuing inability to work – decision under review remitted
LEGISLATION
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1999
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123 Hudson and Secretary Department of Family and Community Services [2000] AATA 502
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
DSM-IV: Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, text revision, 2000)
REASONS FOR DECISION
Member G Hallwood
2 September 2020
INTRODUCTION
On 13 October 2016, the Applicant, Ms Vicki Dodd, lodged a claim for disability support pension (“DSP”). Ms Dodd’s claim included a list of conditions:
(a)adjustment disorder;
(b)depression;
(c)anxiety;
(d)post grief;
(e)arthritis;
(f)blood pressure; and
(g)musculoskeletal.
Ms Dodd also claimed that her life expectancy would be significantly reduced because, ‘Being “Aboriginal” Life span is reduced in Australia’.[1]
[1] T10/133.
On 28 July 2017, Centrelink rejected the DSP claim and on 17 January 2019 an authorised review officer (“ARO”) found the decision to reject the claim was correct. On 12 April 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) affirmed this decision.
The AAT1 found that Ms Dodd had the following conditions:
(a)a psychological condition;
(b)plantar fasciitis;
(c)hypertension; and
(d)asthma.
It was found that those conditions met the requirements of ss 94(1)(a) of the Social Security Act 1991 (“the Act”). The AAT1 found that, at the time of her claim, none of Ms Dodd’s lower limb and psychological conditions were fully diagnosed, fully treated or fully stabilised at the time of her application or within 13 weeks of that date and therefore did not assign them with an impairment rating. The AAT1 also found that Ms Dodd’s other conditions, being hypertension and asthma would not attract an impairment rating as there was insufficient evidence that they have an impact on Ms Dodd’s ability to function.
Based on these assessments Ms Dodd was found not to have impairments rating the 20 points required to be eligible for DSP.
On 20 May 2019, Ms Dodd lodged an application for review with the General Division of the Administrative Appeals Tribunal. This application was heard on 15 July 2020, the Secretary was represented by Ms Fitt who appeared by telephone, and resumed on 11 August 2020, the Secretary was represented by Ms Dinkha who appeared by telephone. Ms Dodd appeared before the Tribunal by telephone on both occasions.
Prior to the hearing, the Respondent, the Secretary, Department of Social Services, provided the 309 pages of T-Documents (“T”).[2] The Applicant, Ms Dodd, provided a 32 pages of documents.[3] The Respondent also provided a Statement of Facts Issues and Contentions[4] together with 48 pages of annexures[5] and eight pages of Supplementary T-documents (“ST”) pages.[6] The evidence was not fully heard on 15 July 2020 and the hearing was adjourned until 11 August 2020. The Tribunal gave directions for the parties to produce further evidence, the Applicant provided the Tribunal with a psychological report of Dr Marty Ewer[7] and the Respondent produced three e-mails detailing the qualifications of medical assessors.[8] The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing over the two days.
[2] Exhibit T1-T17
[3] Exhibit A1 to Exhibit A17.
[4] Exhibit R1.
[5] Exhibit R2.
[6] Exhibit ST1-ST6.
[7] Exhibit A18.
[8] Exhibit R3 to Exhibit R5.
ISSUES
The issues which arise in this case are:
(a)whether Ms Dodd has an impairment;
(b)if yes, whether the impairment is permanent;
(c)if yes, whether Ms Dodd’s impairment attracts a rating of 20 points or more; and
(d)if yes, whether Ms Dodd has a continuing inability to work.
RELEVANT RULES
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
To medically qualify for DSP, a person must meet the qualification criteria set out in ss 94(1)(a)-(c) of the Social Security Act 1991 (“the Act”):
94 Qualification for disability support pension
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks (“the qualification period”), as set out in sch 2 cl 4(1) of the Social Security (Administration) Act 1999 . In this matter, the qualification period is 13 October 2016 to 12 January 2017.
It is important to note that medical evidence, such as reports or certificates, that are produced after the qualification period are only relevant to a claim for DSP extent that they provide evidence or corroboration to the claimant’s condition during the qualification period.[9]
[9] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[10], Member Breen said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) … If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (Emphasis added)
[10] [2012] AATA 922.
Section 94 of the Act requires that the person have a continuing inability to work which will be satisfied if:
(a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)they have actively participated in a “program of support”.
The second of these requirements is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Determination”).
With respect to consideration of functional impact, the purpose of the Impairment Determination must be appreciated. In Ulukut and Secretary, Department of Social Services,[11] at [5], Senior Member Isenberg explained the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination
[11] [2014] AATA 399.
The Tribunal’s responsibility is to assess Ms Dodd’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the earlier decision for error.[12]
[12] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68.
CONSIDERATION
Ms Dodd identifies herself as an aboriginal person and she lives in regional South Australia. She indicated to the Tribunal that she has difficulty accessing medical specialists and particularly maintaining consistency of treating practitioners. This means that whenever a doctor or psychologist changes, there is a level of inconsistency in diagnosis, treatment approaches, and prognosis.
Issue 1 – Does Ms Dodd have impairment?
In order to be considered for the DSP it is necessary to have impairment.
Physical and psychological impairments are identified in Ms Dodd’s medical reports. The Secretary does not dispute that Ms Dodd has a physical, intellectual or psychiatric impairment. The Tribunal finds that Ms Dodd has medical conditions that can affect a person’s ability to work including hypertension, asthma, plantar fasciitis, post-traumatic stress disorder (“PTSD”), anxiety, depression and adjustment disorder. While musculoskeletal and arthritis were mentioned in the DSP claim form, Ms Dodd did not offer any evidence in relation to these conditions as at the qualification period.
The Tribunal, while recognising the correlation described by Ms Dodd between being an aboriginal person and reduced life expectancy, was unable to define aboriginality as a medical condition for the purpose of DSP qualification.
The Tribunal is satisfied that Ms Dodd has “physical, intellectual and psychological impairments”. For that reason, the Tribunal finds that Ms Dodd satisfies the first criterion in s 94(1) of the Act.
Issue 2 – Is Ms Dodd’s impairment permanent?
For a condition to be assigned an impairment rating under the Impairment Tables the condition must be considered permanent.[13]
[13] Impairment Determination ss 6(3)-(4).
A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[14]
[14] Ibid ss 6(5)-(7).
Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[15]
[15] Ibid s 6(4).
Hypertension
The Secretary contends that there is insufficient corroborative medical evidence that Ms Dodd’s hypertension was fully diagnosed, fully treated and fully stabilised at the time of her claim. The Secretary also contends that there is no record of the level of functional impact the hypertension caused at the qualification period.
In a medical report dated 5 October 2016,[16] Dr Kalpeshkumar Lad, general practitioner, noted ‘hypertension essential’[17] as one of Ms Dodd’s medical conditions. Dr Lad also described hypertension treatment medication prescribed for Ms Dodd, being Zanidip, APO-Perindopril and APO-Lercanidipine.
[16] T14/199-201, 199.
[17] T14/199.
Ms Dodd’s hypertension was earlier considered by Dr Nasreen, general practitioner, in a Centrelink medical certificate dated 31 October 2007[18] as having a date of onset on that date but being an exacerbation of a previous condition.
[18] ST5/5.
The Tribunal is satisfied that Ms Dodd’s hypertension is longstanding and has been fully diagnosed by appropriately qualified medical practitioners. The treatment also appears to be longstanding and suitably prescribed by the treating doctor. The Tribunal is satisfied that Ms Dodd has been fully treated for this condition. In oral evidence, Ms Dodd confirmed that she has been treated over a long period of time. The Tribunal is satisfied that this condition is fully treated. The significant gap between Dr Nasreen’s certificate of 2007 and Dr Lad’s report of 2016, together with Dr Nasreen’s note that the hypertension was an exacerbation of a previous condition, is indicative of an episodic or fluctuating condition. There is; however, no documented evidence available to the Tribunal that supports that the condition was fully stabilised at the qualification period. There is also no evidence that the condition is likely to persist for more than two years. Ms Dodd did not indicate any consequences of the condition during the qualification period.
In the absence of evidence that Ms Dodd’s hypertension condition was fully stabilised during the qualification period, the Tribunal is not satisfied that it was. For this reason, the Tribunal cannot find on the available evidence that Ms Dodd’s hypertension condition can be considered permanent during the qualification period and for this reason s 6(3) of the Impairment Determination has not been met for Ms Dodd’s hypertension and this condition has not been assessed against the Impairment Tables.
Asthma
The Secretary contends that there is insufficient corroborative medical evidence upon which a finding that the condition of asthma was fully diagnosed, fully treated and fully stabilised during the qualification period.
The only medical record in evidence that diagnoses Ms Dodd as an asthmatic is a Centrelink medical certificate from Dr Nadir Sher, general practitioner, dated 31 October 2018[19] indicating a date of onset of 13 February 2018. This was well outside the qualification period.
[19] T14/231.
Dr Lad’s report of 5 October 2016 does not include asthma as one of Ms Dodd’s medical conditions but does include Ventolin CFC-free inhaler, a treatment associated with asthma, as a relevant medication.
In the absence of any specific evidence that Ms Dodd’s asthma was fully diagnosed, fully treated, or fully stabilised during the qualification period, the Tribunal is not satisfied that she met these requirements and for this reason s 6(3) of the Impairment Determination and this condition has not been assessed against the Impairment Tables.
Plantar fasciitis / lower limb conditions
The Secretary contends that on the available evidence, Ms Dodd’s lower limb conditions were not diagnosed, and that no treatment of these conditions occurred until after the qualification period.
In his report dated 18 October 2017,[20] Mr Nick Aitken, physiotherapist, described Ms Dodd as having significant and debilitating pain along the base of her feet that had been ongoing for several years. Mr Aitken described the cause of the pain as plantar fasciitis and heel spurs and proposed conservative treatment.
[20] T14/239.
On 23 July 2018,[21] Dr Maung Lin, general practitioner, certified that Ms Dodd had undergone a surgical operation for the right plantar fascia release, excision calcaneal spur and that she was following up with a physiotherapist and podiatrist. Dr Lin also recommended compression bandages/socks for Ms Dodd’s rehabilitation.
[21] T14/244.
The Tribunal is satisfied that, on the available evidence, Ms Dodd’s lower limb conditions, and in particular plantar fasciitis, was not fully diagnosed, fully treated or fully stabilised during the qualification period and that all of the evidence relating to these conditions is outside the qualification period. For this reason, s 6(3) of the Impairment Determination has not been met for Ms Dodd’s lower limb conditions and these conditions have not been assessed against the Impairment Tables.
Mental health conditions
In July 2012, Ms Dodd suffered a workplace injury that resulted in longstanding mental health conditions and that have subsequently been exacerbated. These conditions have been extensively corroborated by medical evidence.
In his report dated 10 September 2012,[22] psychiatrist Dr Jules Begg, using the diagnostic tool DSM-IV,[23] diagnosed Ms Dodd as having adjustment disorder following a traumatic event and subsequent dismissal from her workplace. Dr Begg indicated that Ms Dodd’s condition was at the milder end of psychiatric disorders and was sure that once the industrial situation was resolved, there would be a resolution of symptoms. Dr Begg reported that the normal treatment in these circumstances was:
(a)resolving the industrial situation;
(b)up to six to 12 sessions with a psychologist;
(c)antidepressants if symptoms persist; and
(d)short term sleep sedation (although this was unlikely to be necessary).
He also pointed out that Ms Dodd should avoid excessive use of alcohol.
[22] T14/212-216.
[23] DSM-IV: Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, text revision, 2000).
On 18 May 2013, the diagnostic tool DSM-5 was published replacing DSM-IV. The Tribunal notes that classification and diagnosis of PTSD and a number of other mental disorders changed with the introduction of DSM-5. The Tribunal also notes that agreement on exact diagnosis is not necessary.[24]
[24] Hudson and Secretary Department of Family and Community Services [2000] AATA 502, [41].
On 5 May 2014,[25] Dr Anupama Shivashankaraiah, treating general practitioner, diagnosed Ms Dodd as suffering from anxiety, depression and adjustment at work. Dr Shivashankaraiah described treatment as a referral to clinical psychologist Michelle Sexton. Dr Shivashankaraiah maintained this diagnosis and treatment approach in two more medical certificates from June[26] and July 2014.[27]
[25] T14/180.
[26] T14/181.
[27] T14/182.
On 8 May 2014,[28] Ms Michelle Sexton, treating psychologist, provided a WorkCover SA Psychology Management Plan. Ms Sexton’s clinical assessment provided a psychological diagnosis of anxiety and depression for Ms Dodd, describing the condition as having a severe effect on her ability to work. Ms Sexton’s treatment goals included, ‘Anxiety reduction and symptoms that might usually be associated with Post Traumatic Stress Disorder’.[29] This plan described four treatment goals with specific intervention strategies and measures of progress. Therapies included:
(a)motivational interviewing; cognitive behaviour therapy (“CBT”);
(b)behavioural activation; and
(c)mindfulness based CBT.
[28] T14/177-179.
[29] T14/178.
An Employment Services Assessment Report dated 23 July 2014[30] and prepared by a registered psychologist recorded Ms Dodd as having depression and anxiety which is verified by medical evidence. The assessment was conducted face to face. The report noted that Ms Dodd ‘has been seeing Clinical Psychologist Michelle Sexton since September 2013. She is prescribed Endep’.[31]
[30] T11/139-142.
[31] T11/139.
In a Centrelink medical certificate dated 20 October 2015,[32] Dr Lad diagnosed Ms Dodd as having grief and depression, aggravating her previous depression and anxiety since the sudden death of her mother. Dr Lad listed treatment as medications and grief counselling with a prognosis of improving slowly.
[32] T01/183.
In a Centrelink medical certificate dated 17 November 2015,[33] Dr Shivashankaraiah diagnosed Ms Dodd as having depression and bereavement. Her treatment was listed as CBT. Ms Dodd’s prognosis was described as good and the condition as temporary. These opinions were maintained in certificates provided in December 2015[34] and January 2016.[35]
[33] T14/184.
[34] T14/185.
[35] T14/186.
On 9 February 2016,[36] Dr Lin diagnosed Ms Dodd with depression and bereavement and listed treatment as seeing psychologist, Ms Sexton. Dr Lin stated that the prognosis was uncertain.
[36] T14/187.
In a Centrelink certificate dated 15 March 2016,[37] Dr Louise Williams, general practitioner, diagnosed Ms Dodd as having depression. She described the treatment as ongoing CBT with her psychologist, and a prognosis of three to twelve months. On 7 June 2016,[38] Dr Williams diagnosed Ms Dodd with depression and bereavement and described her treatment as ongoing psychotherapy with CBT and anxiolytic medication. Dr Williams did not provide a prognosis on this occasion but did note that Ms Dodd had been unfit for work or study from February 2014 to July 2016. In a further Centrelink medical certificate dated 1 July 2016,[39] Dr Williams diagnosed Ms Dodd with adjustment disorder with depressed mood and anxiety. Treatment was CBT and medication. Dr Williams gave a prognosis as less than three months.
[37] T14/188.
[38] T14/190.
[39] T14/191.
On 2 August 2016,[40] Dr Lad diagnosed Ms Dodd as having adjustment disorder, depressed mood and anxiety. Dr Lad described treatment as including CBT and medications with a prognosis of three to twelve months. Dr Lad also diagnosed Ms Dodd with grief. Dr Lad’s Centrelink medical certificate of 5 October 2016,[41] also diagnosed Ms Dodd with depression, anxiety and post grief listing treatments as medications and psychologist sessions for CBT. On this certificate, her conditions were described as ‘Permanent (likely to persist for 2 years or more)’[42] and the prognosis was ‘more than 24 months’.[43] In a medical report dated 5 October 2016, Dr Lad describes relevant medications as including Temaze, and anxiety medication, and Endep, a depression medication, both medications were prescribed to Ms Dodd to be taken nightly. Dr Lad also stated that Ms Dodd is the subject of a Crisis Plan.
[40] T14/194.
[41] T14/196.
[42] T14/196.
[43] T14/196.
On 20 September 2016,[44] Ms Sexton provided a report to Dr Lad describing the cause of Ms Dodd’s mental health conditions and, in particular, that her expected recovery had not been achieved. The report mentioned that Ms Dodd reported to Ms Sexton that her PTSD symptoms were ongoing. Ms Sexton described a number of treatment interventions including:
(a)grief and loss work;
(b)CBT;
(c)mindfulness;
(d)behavioural activation; and
(e)psycho-education.
Ms Sexton opined that Ms Dodd could not take on any more treatment interventions and that she may never be able to gain or maintain paid work again.
[44] T14/197-198.
In a Centrelink medical certificate dated 5 January 2017,[45] Dr Lad diagnosed Ms Dodd with PTSD, anxiety and depression noting that she has been treated with psychotherapy and medications. Dr Lad said that Ms Dodd’s condition was permanent (likely to last for two years or more) and estimated that the symptoms would affect her ability to work or study for more than 24 months.
[45] T14/202.
The Secretary, in their Statement of Facts, Issues and Contentions, submitted that:[46]
The Secretary contends that as at the Qualification Period Ms Dodd’s condition, which was subsequently diagnosed as “Post Traumatic Stress Disorder” and “Major Depressive Disorder” had not been so diagnosed by an appropriately qualified medical practitioner as required by the Introduction to Table 5.
[46] Exhibit R1, 9.
The Introduction to Impairment Table 5, which relates to Mental Health Function, requires the diagnosis of a mental health condition be made by either a psychiatrist, or a mental health practitioner with evidence from a clinical psychologist. This introduction also notes that the signs and symptoms of mental health impairment may vary over time.
The Secretary questioned whether Ms Sexton was a clinical psychologist at the time of her reports on the basis of her signature block in her report of 20 September 2016 which described her as a “Generalist Psychologist”. The Secretary submitted that the Australian Health Practitioner Regulation Agency (“AHPRA”) website currently endorsed Ms Sexton as a clinical psychologist, but that the site does not indicate when she was endorsed as such. Ms Dodd, when questioned, was unaware of any difference and had no way of knowing whether Ms Sexton was a clinical or generalist psychologist. At the direction of the Tribunal, the Secretary obtained information from AHPRA on 30 July 2020[47] confirming that Ms Sexton first became registered as an endorsed clinical psychologist on 12 February 2016 and on the same date the Psychology Board of Australia granted Ms Sexton with an endorsement to practise as a clinical psychologist.
[47] Exhibit R5.
The Tribunal notes that the Secretary provided a DSP Medical Eligibility Recommendation Assessment dated 28 November 2018,[48] which listed a contributing assessor’s professional discipline as “psychologist”. This report was based on the DSP claim of 13 October 2016, the claim currently before the Tribunal. The report noted that:[49]
A Contributing Assessor (CA), a Department of Human Services Psychologist, UB254, stated that there was evidence of a long history of consistent treatment for the PTSD. The CA stated that the evidence would suggest that the condition was fully diagnosed, treated and supported within the Date of Claim period plus 13 weeks, and recommended a referral for a JCA.
The Tribunal asked the Secretary whether the departmental psychologist was a clinical psychologist and directed that she provide this information to the Tribunal. On 21 July 2020,[50] the Secretary responded by email, that an error had been made and that the CA was not a clinical psychologist. It was provided that the CA’s prefix indicated that they are a nurse.
[48] T12/167-168.
[49] T12/168.
[50] Exhibit R3.
The Tribunal is satisfied that within the qualification period Dr Lad, who had been diagnosing and treating Ms Dodd’s mental health issues since October 2015, together with evidence from Ms Dodd’s treating clinical psychologist, Ms Sexton, diagnosed Ms Dodd with PTSD, anxiety, depression and adjustment disorder. The Tribunal is therefore satisfied that the condition was fully diagnosed at the qualification period.[51]
[51] Impairment Determination s 6(5).
The Secretary contended that Ms Dodd had not been fully treated as at the qualification period. In support of this contention, the Secretary put that Ms Dodd had been treated for grief from 2016 following the death of her mother, and had not been treated for anxiety, depression and adjustment disorder. The Secretary also put that Ms Fiona Fallo, treating clinical psychologist, had not started treating Ms Dodd for PTSD until 13 April 2017, after the qualification period, and further that Ms Dodd had not been prescribed medication by way of treatment for her condition, being PTSD and major depressive disorder, as at the qualification period.
As Ms Sexton had been treating clinical psychologist until January 2017, and Ms Fallo had not taken over treatment of Ms Dodd until April 2017, when Ms Sexton had left the practice, it is not surprising to the Tribunal that Ms Fallo had not started treating Ms Dodd before she was her treating psychologist.
Ms Sexton’s report of 20 September 2016 does indicate that sessions since 29 January 2016 had focussed mostly on helping Ms Dodd to adjust to the loss of her mother; however, the report goes on to describe treatments directed at grief and loss as well as anxiety and depression, being:
(f)grief and loss work: to help process the loss and start to rebuild life
(g)CBT: to help encourage thinking that is supportive and helpful
(h)mindfulness: to help deal with and increase tolerance to difficult emotions
(i)behavioural activation: to reduce symptoms of depression
(j)psycho-education: concerning anxiety and depression
Dr Lad’s report of 5 October 2016 indicated that Ms Dodd was taking the medications Tamaze and Endep, for anxiety and depression.
Section 6(7) of the Impairment Determination defines reasonable treatment and relevantly sets out that reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low cost to the person.
Ms Dodd lives in a remote location which is known to have limited access to clinical psychologists and psychiatrists. During the qualification period, Ms Dodd had been treated for her mental health conditions for over three years with a number of treating medical experts acknowledging her compliance with and participation with her treatment programs. In oral evidence, Ms Dodd described significant emotional and psychological cost of leaving her house to attend treatment during the qualification period. In the report of 5 October 2016 Dr Lad opines that Ms Dodd is a low-income earner.
The Tribunal is satisfied that the clinical psychologist that was involved with Ms Dodd since September 2013 had, by the qualification period, provided talking therapies to Ms Dodd that meet the definition of reasonable treatment in the Impairment Determination.[52] The Tribunal is also satisfied that Dr Lad and the other general practitioners involved in Ms Dodd’s treatment medication have delivered reasonable treatment.
[52] Ibid s 6(7).
For these reasons the Tribunal finds that Ms Dodd satisfied the fully treated requirements of s 6(5) of the Impairment Determination.
In order to be fully stabilised, relevantly, a person has to have undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.[53]
[53] Ibid s 6(6).
Treatment has already been described. In oral evidence, Ms Dodd stated that at the time of the qualification period she struggled to leave home.
Dr Lad, in medical certificates dated 5 October 2016 and 5 January 2017, stated that Ms Dodd’s condition was permanent and would affect her capacity to work or study for more than 24 months. Ms Sexton in her report dated 20 September 2016, indicated that Ms Dodd may never be able to gain or maintain paid work again.
The Tribunal is satisfied for the above reasons that Ms Dodd’s condition was fully stabilised in order to meet the requirements of s 6(6) of the Impairment Determination. The Tribunal is also satisfied that the condition was likely to persist for more than two years.
As Ms Dodd’s mental health conditions were fully diagnosed, fully treated, and fully stabilised by the end of the qualification period, and was likely to persist for more than two years, the Tribunal is satisfied that Ms Dodd’s condition was permanent as described in s 6(4) of the Impairment Determination and can be provided an impairment rating using the appropriate Impairment Table.[54]
[54] Ibid s 6(3).
Issue 3 – Does Ms Dodd’s impairment attract a rating of 20 points or more?
The second requirement for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim, or within 13 weeks of that. The qualification period in this case is from 13 October 2016 to 12 January 2017. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.
Impairment Table 5 – Mental Health Functions
As all of Ms Dodd’s permanent conditions relate to Impairment Table 5, to qualify for DSP, Ms Dodd needs to demonstrate to the Tribunal that she has a severe condition as described in that table.
Ms Dodd lives alone. In oral evidence, she stated that she had spent a year after her workplace incident and related injury unable to cope with anything, staying in her room, unable to speak, and with her parents feeding her. She said that she had to withdraw her superannuation in order to survive financially. Ms Dodd reported having no ability to remember anything of that time stating, ‘I was in a black hole’.
Now, eight years on, Ms Dodd says that she still lives in fear of the men she describes as ‘violent people’ that she was intimidated by when working at the Dieri Aboriginal Corporation.
Impairment Table 5 is used where a person has a permanent condition resulting in functional impairment due to a mental health condition.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
The Tribunal has included an extract from Impairment Table 5 which outlines the moderate and severe impact categories and examples as the most relevant in this matter. In order to meet the functional impact severity description, a person must have that level of functional impact with most of the criteria. As there are six criteria in each of these categories the person must match at least four to match the severity level.
Self care and independent living
At the time of her claim, Ms Dodd was living with a friend who she said cooked all of her meals and looked after her. She indicated she would not have eaten if it had not been for her parents and then her friend.
She said her sisters still call her every day to make sure she does not forget to eat. Sometimes, Ms Dodd’s sisters help by cooking meals for her although she does cook her own soup, sandwiches, sausage rolls and stir fry. She says she has to be careful as she is easily distracted. Ms Dodd described a recent example (as Ms Dodd appeared to struggle recalling many past events) saying she baked a cake on the weekend, and it was dried out because she got side-tracked.
Ms Dodd said she cleans and keeps the house hygienic to the extent that her physical conditions allow. When questioned about what cleaning consisted of she described dusting and wiping down surfaces. She says she is grateful her parents gave her good housekeeping skills. Ms Dodd said that she can clean and even cleans her sister’s house. She said her sister is in a wheelchair.
In her report of 20 September 2016, Ms Sexton described Ms Dodd’s level of functioning as low stating that she pushes herself as best as she can with routine daily activities.
Dr Lad’s medical certificate dated 5 January 2017, described Ms Dodd as dealing with a mental breakdown and acopia.
The Tribunal is satisfied that Ms Dodd’s description of her condition at the time of her claim as it relates to self care and independent living falls somewhere between severe functional impact, being ‘The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker’ and moderate functional impact being, ‘The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition’.
The Impairment Determination states that if an impairment is considered as falling between two impairment ratings, the lower of the two impairment ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. For this reason, the Tribunal is satisfied that Ms Dodd has a moderate functional impairment in relation to the impact of her self care and independent living activities arising out of her mental health conditions.
Social/recreational activities and travel
In her oral evidence, Ms Dodd indicated that at the time of her application she was too afraid to travel alone. She would get someone, often her brother, to drive her when she had medical appointments in Adelaide. Ms Dodd does not attend social or recreational events. She said that her family goes to watch local football but she cannot cope being in crowds. She has driven to Quorn, a distance of about 50 kilometres, a few times in the last few years. She has not stopped even though she has family there. Ms Dodd has wanted to go ‘back home to my country [Lake Eyre]’ but has not been able to because she would find it hard packing up things, and because everything is so raw.
Ms Dodd stated that during the qualification period she was very isolated apart from her close family, spending most of the time at home. She also acknowledged that she was not very good at looking back to that time and judging dates. Ms Dodd said she struggled even travelling to the local shops and would cry when people talked to her.
Ms Sexton, in her report of 20 September 2016, described Ms Dodd as having fear and difficulty interacting with people apart from her family, friends and trusted professionals in her life.
Impairment Table 5 provides an example of a severe functional impact on social / recreational activities and travel as, ‘The person travels alone only in familiar areas (such as the local shops or other familiar venues)’. The Tribunal is satisfied this applies to Ms Dodd.
Interpersonal relationships
Ms Dodd described how difficult it was to maintain contact with others, even with her family. She said she has problems trusting people and that she is not as close even to her favourite aunties as she was before. She is not involved in family events. Ms Dodd stated that when she sees people that she knows in the local shops she often has to go back out to the car and wait for them to go because she cannot face them. She stated that she sometimes cannot talk on the phone because her heart beats pretty fast. She said that she ignores the telephone ringing and just sits in the sun like she was told to do by her psychologist. Ms Dodd says that her brother has taken her to Quorn on occasion.
As discussed earlier, Ms Sexton described Ms Dodd as being fearful and having difficulties interacting with people apart from family, friends and trusted professionals in her life.
Impairment Table 5 provides an example of a severe functional impact on interpersonal relationships relevantly as, ‘The person has very limited social contacts and involvement unless these are organised for the person’. The Tribunal is satisfied this example applies to Ms Dodd.
Concentration and task completion
Ms Dodd appeared to struggle to remain focussed throughout the hearing, she displayed disordered thinking rarely getting to the main point in her answers on the first attempt. She described having done puzzles to keep her mind working but finding she did not get the correct answers. She said she likes watching cooking shows on television. She said she likes to cook curries but sometimes gets the spices wrong. Ms Dodd says that she can read for about 15 minutes at a time. She said that she forgot to take her medication and her mother had to tell her to take her tablets. She writes lists when she goes shopping, but even then, she forgets things.
Dr Lad, in his certificate dated 5 January 2017, described Ms Dodd as having acopia.
Ms Sexton in her report dated 20 September 2016 states that Ms Dodd’s concentration is poor.
Table 5 provides examples of a moderate functional impact on concentration and task completion relevantly as:
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book); and
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions)
The Tribunal is satisfied these examples of moderate functional impact apply to Ms Dodd.
Behaviour, planning and decision-making
Ms Dodd described many normal activities and environments that she was unable to cope with. She said that she no longer has friends because she cannot trust people. She only communicated with close family. She said that she could not cope with environments where there were a lot of people, no longer even going to watch her grandchildren play football. She sometimes could not even answer the telephone because she was scared and unable to cope with meeting people, she knew at the shopping centre. Ms Dodd described having mood swings and temper outbursts with her siblings because they wanted her to talk to them. Ms Dodd also described frequent to continual disturbed sleep.
Dr Lad’s report of 5 October 2016 noted that Ms Dodd had, at the time, a current crisis plan. Dr Lad also noted that Ms Dodd has disturbed sleep. Dr Lad’s certificate dated 5 January 2017 described severe mood fluctuation and mental breakdown.
Impairment Table 5 provides an example of a severe functional impact on behaviour, planning and decision making relevantly as, ‘The person’s behaviour, thoughts and conversation are significantly and frequently disturbed’. The Tribunal is satisfied this example applies to Ms Dodd.
Work/training capacity
In oral evidence, Ms Dodd stated that she now works in a part time job with flexibility of hours. She thinks she has worked for about a year now although was unable to recall when she started, perhaps April 2019. Ms Dodd says that her employer is very understanding and allows her to take breaks in the ‘time out room’ or ‘crying room’ when she becomes anxious. She is allowed to work at her own pace.
The Tribunal must look to Ms Dodd’s functioning at the time within the qualification period.
Ms Dodd described having had no capacity to work during the qualification period.
Dr Lad, in the certificate dated 5 October 2016, described Ms Dodd’s mental health condition as being ‘permanent (likely to persist for 2 years or more)’,[55] and her prognosis in relation to how long the symptoms will affect her capacity to work or study as being more than 24 months. Dr Lad noted that at that time Ms Dodd had no capacity to work or study.
[55] T14/196.
Ms Sexton in her report of 20 September 2016, noted that Ms Dodd ‘may never be able to gain or maintain paid work again’.[56]
[56] T14/198.
The Tribunal is satisfied that Ms Dodd’s conditions have a severe functional impact on her work/training capacity based on the example in Impairment Table 5: ‘The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness’.
Overall Impairment at the Time of Application
The Tribunal is satisfied that the above descriptions represent the impairment at the time of the qualification period, and, to the degree it is possible to gauge, at the time of the application. The Tribunal has received self-reported and corroborating medical and psychologist evidence, including a DASS-21, that Ms Dodd’s permanent conditions have both worsened and recovered to varying degrees since the qualification period and these are not considered by the Tribunal to be of material value in this matter.
Because Ms Dodd has severe difficulties with most of the functional areas (four of six) involved in mental health function in Impairment Table 5, the Tribunal allocates 20 points from this Impairment Table.
Severe Impairment
A person has a “severe impairment” if their impairment scores 20 points or more under the Impairments Tables, of which 20 points or more are under a single Impairment Table.
The Tribunal finds that Ms Dodd has a severe impairment as she has been allocated 20 points under Impairment Table 5.
A person whose impairment is not a severe impairment is required to have actively participated in a program of support.
As Ms Dodd has a severe impairment she is not required to have participated in a program of support.
Issue 3 – Does Ms Dodd have a continuing inability to work?
Ms Dodd is 58 years old. She completed year 12 at high school and a business diploma at TAFE. She had not worked in paid employment between July 2012 and the end of the qualification period.
The test for a continuing inability to work is whether a person’s medical conditions prevent them working 15 hours per week in whatever type of work suits them best given their permanent conditions.
The Employment Services Assessment Report (“ESA”) dated 6 April 2016[57] is the last of the reports relating to work capacity obtained by the Department prior to Ms Dodd’s DSP application. The ESA report found that Ms Dodd’s psychological/psychiatric disorder was not fully diagnosed, fully treated and fully stabilised and allocated a baseline work capacity of 15 to 22 hours per week with a temporary work capacity of zero to seven hours per week. No similar reports appear to have been submitted until 21 February 2018, well outside the qualification period.
[57] T11/144-149.
Ms Dodd’s various treating general practitioners and psychologist appear to have held the view that Ms Dodd had a relatively positive prognosis up until September 2016. It was not until Ms Sexton’s report of 20 September 2016 and Dr Lad’s certificate of 5 October 2016 that the appropriately qualified medical practitioner with evidence from a clinical psychologist shifted their position finding that Ms Dodd was unable to do any work or to study for eight hours or more per week, and that her symptoms would affect her capacity to work or study for more than 24 months.
The Tribunal is not satisfied, given the importance of medical evidence in preparing an ESA, that the ESA of 6 April 2016 can be relied on for the situation at the time of claim after the significant change in prognosis by the treating general practitioners and clinical psychologist some five months later.
In the absence of employment specialist evidence between the change in prognosis and the end of the qualification period, the Tribunal is satisfied that the oral evidence of the Applicant corroborated by the report and certificate of the treating clinical psychologist and general practitioner is sufficient to assess Ms Dodd’s continuing inability to work.
The Tribunal finds that Ms Dodd’s permanent conditions prevented her from undertaking work or training that would enable her to perform 15 hours per week of work within two years. She therefore has a continuing inability to work and satisfies s 94(1)(c) of the Act.
Ms Dodd therefore satisfies all parts of s 94(1) of the Act and qualifies for DSP subject to all other requirements of the Act being met.
CONCLUSION
The Tribunal is satisfied that Ms Dodd has “physical, intellectual and psychological impairments” and finds that Ms Dodd satisfies the first criterion in s 94(1)(a) of the Act.
The Tribunal was not satisfied on the evidence that her conditions, including arthritis, blood pressure, and musculoskeletal [pain] listed in Ms Dodd’s claim were permanent and so these conditions were not assessed using the Impairment Determination.
The Tribunal found that the mental health conditions, consisting PTSD, anxiety, depression and adjustment disorder, were fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised during the qualification period. The Tribunal also finds that Ms Dodd’s mental health conditions were more likely than not, in the light of available evidence, to persist for more than two years at the time of Ms Dodd’s claim and so meeting the requirements of s 6(4) of the Impairment Determination. This allowed the mental health impairment to be assigned an impairment rating.[58]
[58] Impairment Determination s 6(3).
Ms Dodd’s mental health conditions were assigned 20 points and found to be a severe impairment under Impairment Table 5 relating to Mental Health Function and meeting s 94(1)(b) of the Act.
As Ms Dodd’s impairment was severe, she was not required to have actively participated in a program of support.
Ms Dodd was found to have a continuing inability to work satisfying s 94(1)(c) of the Act.
The Tribunal is satisfied that Ms Dodd satisfies ss 94(1)(a)-(c) of the Act and that the decision under review should be set aside.
DECISION
The decision under review is remitted to the Respondent for reconsideration in accordance with the Direction that:
(a)the Applicant’s claim for disability support pension is to be reassessed on the basis that she satisfies ss 94(1)(a)-(c) of the Social Security Act 1991 and has done so since the date of claim, being 13 October 2016. This means that subject to all other requirements of the Social Security Act 1991 being met, Ms Dodd is eligible to receive the disability support pension from the date of claim. This means the application is successful.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood
......................[Sgnd]................................
Associate
Dated: 2 September 2020
Date of hearing: 15 July 2020 and 11 August 2020 Applicant By telephone Representative for the Respondent: 15 July 2020: Ms Catherine Fitt
11 August 2020: Ms Sarah Dinkha
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