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

[2020] AATA 490

Findlay and Secretary, Department of Social Services (Social services second review) [2020] AATA 490 (13 March 2020)

Division:GENERAL DIVISION

File Number:          2019/0707

Re:Gary Findlay

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 March 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – depression and anxiety – epilepsy – obstructive sleep apnoea – tinnitus and benign positional vertigo – whether impairments rated at 20 points or more under the Impairment Tables – limited medical evidence – decision affirmed

LEGISLATION

Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth), schedule 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

13 March 2020

1. The applicant, Mr Gary Findlay, has been in receipt of disability support pension since 12 November 2019. This application to the General Division of the Administrative Appeals Tribunal (the Tribunal) relates to whether Mr Findlay is eligible to receive disability support pension from the date of an earlier claim he lodged with Centrelink on 5 September 2018.

2. Mr Findlay’s application was heard in Sydney on 5 March 2020; he attended the hearing in person and provided oral evidence to the Tribunal.

   RELEVANT LEGISLATION

   Qualification for disability support pension

3. To qualify for disability support pension, Mr Findlay must satisfy the criteria in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act), which requires him to show he has:

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

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

   (c)a continuing inability to work.

4. Further, Mr Findlay must satisfy these criteria on the date he applied for disability support pension on 5 September 2018 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

5. 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 Determination).

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

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

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

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

10. Relevant to this application, the introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

11. The Secretary concedes, and the Tribunal agrees, that Mr Findlay has medical conditions that cause impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

12. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Mr Findlay had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

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

    Depression and anxiety

13. Mr Findlay has been diagnosed with and received treatment for depression and anxiety. This is verified in medical reports by:

    ·Mr Ian Smith (clinical psychologist) dated 12 August 2010 and 12 October 2010;

    ·Associate Professor Arun Aggarwal (neurologist) dated 4 March 2016;

    ·Ms Sallyanne Aarons (psychologist) dated 10 March 2016;

    ·Dr Cosmas Wong (general practitioner) dated 30 May 2017, 3 July 2017 and 4 September 2018; and

    ·Ms Sahra Behardien O’Doherty (psychologist) dated 23 June 2017, 3 September 2018 and 23 September 2019.

14. Dr Wong reported on 4 September 2018 that Mr Findlay had also been assessed by Ms Danielle Moore (clinical neuropsychologist) and Dr Andrew Jackson (psychiatrist) regarding his cognitive function and memory impairment. This assessment report dated 30 May 2018 concluded Mr Findlay had ‘mild difficulty taking in and learning larger pieces of verbal information’.[1]

    [1] Exhibit T-T21, page 182.

15. In her report on 23 September 2019, Ms O’Doherty outlined Mr Findlay’s psychological presentation as at the date of his claim for disability support pension on 5 September 2018. Ms O’Doherty opined that Mr Findlay meets the diagnostic criteria for major depressive disorder and experiences comorbid anxiety symptoms. Referring to Table 5 – Mental Health Function in the Impairment Tables Determination, Ms O’Doherty stated that Mr Findlay meets the criteria for five points as his mental health condition has a mild functional impact. In making this assessment, Ms O’Doherty detailed Mr Findlay’s capacity to function in relation to self-care and independent living; social / recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work / training capacity.

16. At the Tribunal hearing, Mr Findlay reported that he continues to see Ms O’Doherty. His oral evidence about his personal circumstances and his functional capacity during the relevant claim period was consistent with Ms Doherty’s report dated 23 September 2019.

17. Based on the medical evidence, I am satisfied that Mr Findlay’s depression and anxiety was fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised during the claim period. In accordance with Table 5 – Mental Health Function of the Impairment Tables Determination and the medical evidence, I assign five points for this condition.

    Epilepsy

18. Dr John Allsop (neurologist) reported on 17 August 1994 that Mr Findlay has ‘idiopathic epilepsy which has responded well to treatment’ and he has had ‘no seizures since 1981’.[2] There is no other medical evidence before the Tribunal in relation to this condition.

    [2] Exhibit T-T5, page 93.

19. Mr Findlay told the Tribunal he last experienced a seizure when he was 20 years old and he no longer takes medication.

20. Based on the evidence, I am satisfied that this condition was fully diagnosed, fully treated and fully stabilised during the claim period. However, there is no medical evidence to support a finding that this condition has any functional impact on Mr Findlay. I therefore cannot assign an impairment rating for this condition in accordance with the Impairment Tables Determination.

    Obstructive sleep apnoea

21. In a medical report on 13 August 2018, Dr Kelvin Hsu (respiratory physician) wrote that Mr Findlay presented with snoring and excessive daytime sleepiness, and underwent a sleep study. Mr Findlay was diagnosed with ‘severe obstructive sleep apnoea in association with severe arterial oxygen desaturation.’[3] Dr Hsu opined that Mr Findlay’s sleep apnoea would improve ‘once he starts CPAP therapy’.[4]

    [3] Exhibit T-T18, page 168.

    [4] Exhibit T-T18, page 169.

22. At the Tribunal hearing, Mr Findlay said he participated in a CPAP machine trial at Concord Hospital after his diagnosis of sleep apnoea; he subsequently explored options to either rent or purchase a CPAP machine but decided he could not afford a machine. He told the Tribunal he now intends to purchase a CPAP machine.

23. Based on the medical evidence, I am satisfied that Mr Findlay’s condition of obstructive sleep apnoea was fully diagnosed, but not fully treated or stabilised during the claim period. For this reason, I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Tinnitus and Benign Positional Vertigo (BPV)

24. Dr Andrew Wills (ear, nose and throat specialist) reported on 20 August 2010 that he was treating Mr Findlay for ‘his bilateral tinnitus and his displaced inner ear crystals.’[5] On 31 July 2018, Dr Wills reported that Mr Findlay experienced a ‘recurrence of his presumed BPV’ which was treated with an ‘Epley manoeuvre’.[6]

    [5] Exhibit T-T5, page 95.

    [6] Exhibit T-T18, page 167.

25. Dr Sheela Bhatt (general practitioner) provided a medical report dated 2 October 2019 that stated Mr Findlay suffers from vertigo and tinnitus, and experiences ‘recurrent dizziness’ and ‘continuous buzzing in his ears’ that ‘reduces his ability to focus on a task’.[7] I note that this report was written almost ten months after the claim period.

    [7] Exhibit A2.

26. Mr Findlay told the Tribunal that he experiences constant ringing in his ears due to tinnitus and experiences dizziness because of his BPV; he said his dizziness sometimes resolves itself and otherwise, he visits Dr Wills for treatment.

27. Based on the limited medical evidence, I find Mr Findlay’s conditions of tinnitus and BPV were fully diagnosed, but not fully treated and fully stabilised during the claim period. In accordance with the Impairment Tables Determination, I am unable to assign points for these conditions.

    CONCLUSION

28. For the reasons set out above, I am satisfied that Mr Findlay did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

29. As I find that Mr Findlay did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 13 March 2020

Date(s) of hearing:	5 March 2020
Applicant:	In person
Solicitors for the Respondent:	C Hammerton, Services Australia