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

[2018] AATA 5318

Dyer and Secretary, Department of Social Services (Social services second review) [2018] AATA 5318 (10 August 2018)

Division:GENERAL DIVISION

File Number:           2017/4869

Re:June Dyer

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I F Thompson

Date:10 August 2018

Place:Adelaide

The Tribunal affirms the decision under review

.......................[Sgd].................................................

Member I F Thompson

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether medical conditions fully diagnosed, fully treated and fully stabilised during the assessment period - whether an impairment rating of 20 points or more existed under the Impairment Tables - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), S 94

Social Security (Administration) Act 1999 (Cth), s 42 & Schedule 2

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Member I F Thompson

10 August 2018

INTRODUCTION

1. The applicant June Dyer lodged a claim for disability support pension (DSP) on 12 August 2016.  Centrelink rejected the claim in the first instance and Ms Dyer requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Ms Dyer requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  Ms Dyer applied to the General Division of the Tribunal for a second review. 

2. The hearing took place on 27 July 2018. Ms Dyer attended the hearing and was self‑represented. Mr Visser represented the respondent, the Secretary, Department of Social Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

   LEGISLATION AND ISSUES

3. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The assessment period in this case is 12 August 2016 to 11 November 2016.

4. Further, s 94 of the Act requires that a person has 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”. 

5. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. The Secretary accepted that Ms Dyer suffers from an impairment through a mental health condition and therefore satisfied s 94(1)(a) of the Act.

7. In Ms Dyer’s claim for DSP, she listed a number of physical impairments and mental health issues.  Centrelink had determined that none of the conditions were fully diagnosed, fully treated and fully stabilised and could not be assigned any points under the Impairment Tables.  The AAT1 reached the same conclusion.

8. Between the AAT1 hearing and the hearing before this Tribunal, the Secretary arranged for a medical opinion to be obtained from the Department of Human Services Health Professional Advisory Unit (HPAU).  Consistently with that opinion, the Secretary submitted that Ms Dyer’s mental health condition was fully diagnosed, fully treated and fully stabilised and that she could be assigned an impairment rating of 10 points.  Further, the Secretary contended that none of Ms Dyer’s physical impairments were fully diagnosed, fully treated and fully stabilised.

9. Accordingly the Secretary contended that Ms Dyer did not have a continuing inability to work and was not qualified for the DSP during the assessment period.

10. The main issue for determination is whether Ms Dyer’s impairments could be assigned 20 points or more under the Impairment Tables.  Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.

    IMPAIRMENT TABLES

11. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

12. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

13. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

14. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. 

15. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

16. The applicable impairment rating for each of Ms Dyer’s conditions will be considered in turn by reference to the Impairment Tables.

    EVIDENCE OF MS DYER

17. Ms Dyer gave lengthy evidence.  She told the Tribunal that she lives with her teenage daughter.  She looks after her daughter and together they carry out a range of household tasks including shopping, cooking and cleaning.  She drives her daughter to and from school.  She said that they work together as a team.  Because of some physical problems and lapses in memory, Ms Dyer values the practical day to day assistance which she receives from her daughter. 

18. In relation to recreational activities, Ms Dyer told the Tribunal that she participates in ballroom dancing.  She often participates in ballroom dancing twice a week.  She has participated at a competitive level as some stage in the last two or three years.  She also enjoys reading books particularly ones about politics, arts and crafts.  She gets too tired now to read many books.  She enjoys sewing and she has designed her own clothes.  She makes her daughter’s ballet costumes. 

19. Ms Dyer told the Tribunal about a small group of close friends.  They provide her with social and emotional support.  Beyond them, she has a wider group of friends and about 100 of them joined her recently to celebrate her 50^th birthday.  She organised the party in a hall which she hired. 

20. Unfortunately Ms Dyer also has a network of associates with whom she has long term, troublesome encounters.  She told the Tribunal about some of the events which have caused her sustained emotional distress over many years.  Included amongst the unpleasantries are communications about her through social media, damage to property which she owns and various incidents which she describes as frightening and intrusive.  For example, she told the Tribunal that she has problems sleeping especially when she was receiving threatening phone calls in the early hours of the morning. 

21. Ms Dyer is extremely concerned about getting flash backs during conversations.  When a flash back is triggered by a thought or something that is said in conversation, she gets distracted and looses concentration and focus in the conversations. 

22. Prior to the DSP claim Ms Dyer was consulting a general medical practitioner Dr Montana on a regular basis for a number of issues including gynaecological problems for which she was receiving treatment and rectal bleeding for which she later underwent surgery.  She also had skin cancer treatment.  Subsequently she was consulting another doctor at the same practice, Dr T Nguyen, for mental health problems and physical pain affecting her upper limb and neck. 

23. Prior to her DSP claim Ms Dyer had a long history of employment.  She worked in supervisory and managerial positions.  Her employment history covers a number of different industries.  More recently she was employed in the disability sector. 

    Other evidence

24. Two of Ms Dyer’s friends gave oral evidence to the Tribunal.  The evidence of each of them was thoughtful and helpful to the Tribunal.  Both witnesses are part of Ms Dyer’s close friendship group and they have provided her with emotional and practical support over several years.  They both gave evidence about their observations of Ms Dyer and the encounters which they have with her socially.  Each of them were aware of the social and emotional difficulties which Ms Dyer faces in her life.  In an effort to support her, they maintain regular contact with her and with her daughter.  That contact has included meetings both at their respective homes, at dances and other recreational occasions. 

    MEDICAL EVIDENCE

25. Dr Armstrong from the HPAU provided a comprehensive, written report dated 22 January 2018.  That report included a summary of the extensive medical evidence.  Dr Armstrong gave evidence in person at the hearing. 

26. Ms Dyer’s current medical practitioner, Dr Nguyen, gave evidence by telephone at the hearing.

27. Numerous medical reports were received in evidence.  They provide a thorough history of Ms Dyer’s physical and mental health conditions.

28. During the past nine months, Ms Dyer has received treatment from a psychiatrist, Dr A Lavender.  In her evidence Ms Dyer stated that he has helped her a lot.  In a report dated 11 January 2018,[1] Dr Lavender provided a clear summary of Ms Dyer’s complicated circumstances as follows:

    “She has a complex history and is being treated for Post-Traumatic Stress Disorder with ongoing severe psychosocial stressors.  She and her daughter have both been the victims of severe harassment online and over the phone.  These threats have been documented and reported to police on many occasions.

    The PTSD has the symptoms of severe sleep disturbance with intrusive dreams, she experiences distressing flashbacks throughout the day, and she has anxiety most of the time which is worse whenever she becomes aware of another threat.  She experiences psychosomatic physical symptoms of Irritable Bowel Syndrome, tense muscles, dizziness, neck stiffness, back pain, and pelvic pain.  She has cognitive effects with poor short term memory, difficulty with new learning, and concentration.  She has developed avoidance coping mechanisms such as not being able to socialise outside of the comfort zone, she is unable to go to many areas, and generally isolates herself.  She finds it hard to trust people.

    She is unable to do many physical housework activities because of her pain and neck stiffness.  She has a distressing effect of bowel leakage.”

    [1] Exhibit 13.

    Evidence of Dr Armstrong

29. Dr Armstrong’s report contains a summary of medical reports, job capacity assessment file assessments and associated documentation from 2006 to January 2018.  In preparing her report, Dr Armstrong spoke by telephone with Dr Nguyen, Dr Lavender and with a clinical psychologist Ms L Smyth.

30. Dr Armstrong concluded that Ms Dyer’s mental health condition was fully diagnosed, treated and stabilised in the assessment period.  It was clear from the medical reports that Ms Dyer had suffered from mental health problems for about 15 years, if not longer.  Over that time she had received intermittent treatment from psychiatrists and from psychologists.  Dr S Sujeeve was a psychiatrist who had treated Ms Dyer in 2015 and he considered that she suffered from a PTSD in the context of sexual harassment and assault with symptoms of flash backs, nightmares and avoidant behaviour.

31. Dr Armstrong also conferred with Ms L Smyth, a clinical psychologist who saw Ms Dyer in 2017.  Ms Smyth reported that Ms Dyer had a complex presentation which was difficult to diagnose.  She agreed that Ms Dyer had significant psychiatric issues, while it was difficult to clarify her functional capacity and difficult to conclude if some of her thoughts and commentaries were delusional.

32. In a report dated 16 October 2017,[2] a clinical psychologist, Dr K Henderson, confirmed Ms Dyer’s diagnosis of PTSD.  She noted that Ms Dyer had made numerous attempts to engage in treatment.  She concluded her condition was “likely stabilised.”

    [2] Exhibit 5.

33. On consideration of all the medical reports which she analysed and following discussions with three of the medical practitioners, Dr Armstrong concluded that Ms Dyer suffered from PTSD at the time of her DSP claim.  She concluded that the PTSD amounted to a medical health condition which was fully diagnosed, treated and stabilised at that time.  The mental health condition was of long standing.

    Evidence of Dr Nguyen

34. Dr Nguyen provided evidence to the Tribunal by telephone.  His evidence was in addition to reports before the Tribunal dated 17 October 2017[3] and a report dated 16 January 2018.[4]

    [3] Exhibit 5.

    [4] Exhibit 13.

35. Dr Nguyen took over the coordination of Ms Dyer’s treatment from Dr Montana.  He noted that Ms Dyer had been under the care of a psychiatrist, Dr Sujeeve since 2012.  He noted that she was diagnosed with PTSD in 2015.  The symptoms of PTSD included insomnia, psychological distress following nightmares and flash backs.  He considered that those episodes manifested themselves as physical pain and weakness affecting her right upper limb and neck. 

36. Dr Nguyen recalled that he had spoken with Dr Armstrong about Ms Dyer.  He acknowledged that she had recorded correctly these comments which she attributed to Dr Nguyen:

    “Ms Dyer has no problems attending familiar events and social groups, but finds unfamiliar areas difficult.  He socialisation is limited to her usual friends.  She is always on edge & can get suspicious.  Can lead to irritability with others.  She would have difficulty concentrating for more than 30 minutes.  Her planning and decision making can be haphazard & disorganised-fluctuates.  Dr Nguyen believed that she would be unable to work [more than] 15 hours/week due to her psychiatric illness.  She had sent an excessive number of emails & messages to the medical centre previously, but this decreased after the practice manager spoke to her.  Dr Nguyen said the she does ‘everything that she’s asked’ and is compliant.  She can be over-inclusive at times. …”

    CONSIDERATION

37. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[5] 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). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. 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.”

    [5] [2012] AATA 922.

38. In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions.  In Re Fanning and Secretary, Department of Social Services,[6] DP Handley stated (at 33) that:

    “The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.

    [6] [2014] AATA 447.

39. On consideration of all the medical evidence, together with Ms Dyer’s evidence, the Tribunal is satisfied that as at the time of her DSP claim or within 13 weeks of that date her mental health condition was permanent and the impairment was likely to persist for more than two years.  The Tribunal is satisfied that the mental health condition was fully diagnosed at that time and it was fully treated and stabilised during the assessment period.  Therefore an impairment rating can be given for this condition.

    The applicable impairment rating

40. Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment.  The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate.  It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations.

41. For a moderate functional impact on activities involving mental health function, Table 5 provides:

Points

Descriptors

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.

1. For a severe functional impact on activities involving mental health function Table 5 provides:

Points

Descriptors

10

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 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.

1. Dr Armstrong drew conclusions about the appropriate impairment rating based on her analysis of the medical reports and conversations with three of the practitioners.  She considered that an impairment rating of 10 points was appropriate.  Noting her assessment, and, in addition, also taking into account the evidence which Ms Dyer and her two lay witnesses provided, the Tribunal also concludes that an impairment rating of 10 points is correct.

2. It is clear from the evidence that Ms Dyer requires some support to live independently.  She has some interference with social and recreational activities and problems with interpersonal relationships.  Her concentration is affected adversely for longer tasks and she has difficulty coping with situations that involve stress and pressure.  However the evidence does not satisfy the Tribunal that she suffered a severe functional impact during the assessment period to a degree that the severity of her difficulties meets the criteria for 20 points.

   Other conditions

3. Dr B Krause is an orthopaedic surgeon.  He provided a written report dated 10 January 2017 following his assessment of Ms Dyer on 20 December 2016.[7]  His examination of the neck and upper limbs indicated a provisional diagnosis of a whiplash injury.  He reported that an x-ray of the cervical spine would be required for an accurate assessment of her neck condition.  Previous records indicated that Ms Dyer had sustained injuries to her neck.

   [7] Exhibit 24, T55 p 356-366.

4. Subsequent to the assessment period, an x-ray of the cervical spine showed mild degenerative changes.[8]

   [8] Exhibit 24, T44 p 220.

5. The Tribunal is not satisfied that there is sufficient evidence to conclude that the neck condition was fully diagnosed, treated and stabilised during the assessment period. 

6. Dr Nguyen reported that in addition to Ms Dyer’s continuing psychological stressors, she had reported rectal bleeding which was investigated and treated.

7. Evidence relating to endometriosis and post-operative laparoscopy pain was not sufficient to have any bearing upon the impairment ratings.  In addition, evidence relating to skin cancer was insufficient to enable the Tribunal to draw any conclusion in favour of Ms Dyer’s claim for the DSP.

   SUMMARY

8. The Tribunal finds that s 94(1)(a) of the Act regarding psychiatric impairment is satisfied.

9. As outlined, the Tribunal finds that Ms Dyer’s mental health condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The appropriate rating for the mental health condition is 10 impairment points.

10. Ms Dyer’s neck condition was not fully diagnosed, treated and stabilised during the assessment period.  An impairment rating cannot be given in relation to the neck condition.

11. With a total of 10 impairment points Ms Dyer does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore she does not satisfy s 94(1)(b) of the Act.

12. In those circumstances it is not necessary to consider whether or not during the assessment period Ms Dyer had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

13. As Ms Dyer was not qualified for DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision under review.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member I F Thompson

........................[Sgd]................................................

Administrative Assistant

Dated: 10 August 2018

Date(s) of hearing:	27 July 2018
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services