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

[2019] AATA 2474

Frese and Secretary, Department of Social Services (Social services second review) [2019] AATA 2474 (9 August 2019)

Division:GENERAL DIVISION

File Number:           2018/6875

Re:Ingrid Frese  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:9 August 2019

Place:Sydney

The Tribunal is satisfied that, during the qualification period, Ms Frese’s impairment was not of 20 points or more under the Impairment Tables, and, therefore, she did not satisfy section 94(1)(b) of the Social Security Act 1991 (Cth) and did not qualify for Disability Support Pension.

The decision under review is affirmed.

.............................[sgd]...........................................

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised and likely to persist for more than two years – whether impairment attracts 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Senior Member

9 August 2019

1. On 23 June 2017, Ms Frese lodged a claim for Disability Support Pension (DSP).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy section 94(1)(b) of the Act.

3. In a decision dated 7 November 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) decided that Ms Frese did not have a rating of 20 points or more under the Impairment Tables and, therefore, did not satisfy the provisions of section 94(1)(b) of the Act.

4. Ms Frese, who was self-represented, attended the hearing in person and now seeks review of the AAT1 decision.

   ISSUES

5. In order to qualify for DSP Ms Frese must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 23 June 2017 and 22 September 2017 (the qualification period).

6. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (s 94(1)(a));

   ·the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).

7. The Respondent concedes, and the Tribunal accepts, that Ms Frese suffers several medical conditions that cause impairment, and therefore she satisfied section 94(1)(a) of the Act at the time of his claim for DSP.

8. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

9. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

   ·fully treated (paragraph 6(4)(b)); and

   ·fully stabilised (paragraph 6(4)(c)); and

   ·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

10. The introduction to each relevant Table of the Impairment Determination notes that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

11. Also, the introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, 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 a psychiatrist)”.

12. There is agreement that during the qualification period Ms Frese suffered several medical conditions which include cervical spondylosis, meningioma, epileptic seizures, alcohol dependence and a mental health condition.

13. The Respondent contends during the qualification period Ms Frese’s combined rating under the Impairment Tables was zero points and, therefore, did not satisfy section s94(1)(b) of the Act and did not qualify for DSP.

14. Therefore, the determinative issue in this matter is whether, during the qualification period Ms Frese’s impairment was of 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.

    MENINGIOMA

15. In March 2011, following an epileptic seizure, an MRI Brain scan performed on 7 March 2011 was reported as showing “a large meningioma in the left cranial fossa” and a “smaller right anterior parafalcine meningioma”.

16. An operation to remove the large meningioma was performed on 23 September 2011.

17. In a Centrelink Medical Report dated 24 May 2013, Dr Foo, general practitioner, listed brain tumour as a medical condition that had minimal impact on ability to function.

18. In a letter dated 16 November 2015, Dr Sutton, consultant neurologist, noted that the progress MRI appearance was stable with “no meningioma recurrence in the left temporal lobe” and no change in the “right frontal meningioma”. He recommended a progress MRI in early 2017.

19. In a letter to Dr Foo dated 5 November 2018, Dr Sutton noted that an MRI performed on 12 October 2018 demonstrated “significant progression of the peri-lesional oedema” surrounding the right frontal meningioma.

20. In a letter dated 21 January 2019, Dr Sutton stated that Ms Frese had been seen by Dr Winder, neurosurgeon, who is planning surgical resection.

    Conclusion

21. Clearly, on consideration of the available evidence, the condition of meningioma was not fully treated and fully stabilised during the qualification period and therefore a rating under the Impairment Tables could not have been assigned.

    SEIZURE DISORDER

22. In a letter dated 28 August 2017, during the qualification period, Dr K M Tan, Director of Neurology, Gold Coast University Hospital[1] stated inter alia the following:

    She reports seizures since 2011…. .on some occasions these seizures have begun with a feeling of panic. There have been 8-10 convulsive seizures in total, but none since 2015, subsequent to adjustment in her dose of levetiracetam.[2] The seizures began subsequent to surgery for a left temporal meningioma.

    Currently she is describing “panic attacks” being weekly to monthly events of overwhelming panic during these episodes, she is concerned that she will progress to having a seizure, She estimates the duration of these episodes at 5 minutes………..She recalls only I panic episode prior to her diagnosis of meningioma, being several years ago and lasting at least 30 minutes. The commencement of escitalopram[3] has not altered the frequency of her current panic episodes.

    I am satisfied she has focal epilepsy. I am unsure whether the current panic episodes represent anxiety or epileptic seizures. Either is possible. I recommended she commence lamotrigine[4] in addition to levetiracetam. This may help to control her episodes of panic

    [1] Between 3 January 2017 and 20 October 2017 Ms Frese lived in Queensland.

    [2] levetiracetam (Keppra) – anti-epileptic medication

    [3] escitalopram (Lexapro) – used to treat depression and generalised anxiety disorder

    [4] lamotrigine (Lamictal) – anti-epileptic – gradually increasing dose over 3 weeks to 50mg BD

23. In a letter to Dr Foo dated 8 February 2018, Dr Sutton stated, inter alia, the following:

    Ingrid has returned from the Gold Coast ……. Ingrid’s last seizure was in September 2015 and was related to non-compliance with medication. I believe Ingrid has been seizure free from this time. Ingrid is mainly struggling with episodes of anxiety and panic attacks.

    I note Ingrid did see a psychologist on the Gold Coast and was started on treatment with Escitalopram, which she now ceased. Ingrid was also commenced on treatment with Lamictal …..  I note that you have prescribed Valium which Ingrid is taking up to twice daily. This is significantly improving the symptoms of anxiety …..My feeling is that Ingrid’s seizure disorder is currently well managed with Keppra, As we have indicated previously Keppra could be contributing to the underlying anxiety and one potential option would be to increase the dose of Lamictal and withdraw Keppra.

24. In his letter of 5 November 2018, Dr Sutton noted that Ms Frese “remains compliant with medication and seizure free”. He listed current medication as Keppra 1g bd, Lamictal 50mg bd, Valium prn.

25. In a letter dated January 2019, Dr Sutton confirmed that Ms Frese was compliant with her unchanged medication and remained seizure free.

    Conclusion

26. Notwithstanding the fact that in 2017 there was an adjustment to Ms Frese’s anti-epileptic medication, I am satisfied that the evidence of Dr Sutton points to a conclusion that, during the qualification period, her seizure disorder was permanent for the purposes of the Impairment Determination.

27. There is no follow up evidence to support a conclusion that her “panic episodes” in 2017 were seizures.

28. On consideration of the descriptors in Impairment Table 15 - Functions of Consciousness, the relevant Table for epilepsy, there is no evidence to support a conclusion that, during the qualification period, Ms Frese suffered any functional impact from her seizure disorder. Therefore, the correct rating under Impairment Table 15 is 0 points.

    CERVICAL SPONDYLOSIS

29. In a letter dated 17 April 2013, Dr Cross, sports physician, noted that Ms Frese presented with a one-month history of “right sided upper neck and limb pain and dysfunction”. X-ray and MRI imaging revealed cervical spondylosis particularly affecting “C5 to C7”. Conservative treatment with physiotherapy and analgesic medication was recommended.

30. In a Job Capacity Assessment (JCA) Report submitted on 18 August 2016 the assessor noted as follows:

    Customer reported she sometimes has pain in her arm from the neck condition. Dr Foo GP 18/8/2016 reported in discussion with the assessor that there is degenerative changes of osteoarthritis. Dr Foo reported the neck condition and arthritic issues are with minimal functions impacts and managed with medication when needed. Nor further investigation or treatment is expected at this time. [sic]

31. At the hearing, Ms Frese told the Tribunal than she can turn he head in all directions but, to avoid pain, tends to turn her trunk when moving her head from side to side and limits her up and down movements.

    Conclusion

32. I am satisfied, that during the qualification period Ms Frese’s medical condition of cervical spondylosis was permanent for the purposes of the Impairment Determination.

33. While I accept that Ms Frese has intermittent symptoms because of her cervical spondylosis there is, in my view, there insufficient corroborative evidence to support a reasonable assessment of the functional impact of the condition on her activities involving spinal function and, therefore, a rating under the Impairment Tables cannot assigned.

    ALCOHOL DEPENDENCE

34. In a Centrelink Medical Certificate dated 12 May 2014 Dr Foo lists alcohol excess as a medical condition which impacts on Ms Frese’s capacity to work or study. No other details are provided.

35. In a letter dated 8 October 2015, Dr Atkins, registered psychologist, noted that Ms Frese “drinks alcohol to excess on a daily basis”.

36. In a letter dated 16 November 2015, Dr Sutton noted noncompliance with anti-epileptic medication associated with excess alcohol.

37. In a letter dated 28 April 2016, Dr Atkins noted that “I have been encouraging her to develop her social network and to attend AA meetings to help her reduce her alcohol consumption”.

38. In a JCA report submitted on 18 August 2016, the assessor reported a discussion with Dr Foo who stated that in treating Ms Frese’s alcohol dependence he had prescribed Campral[5]  “to decrease the cravings” but believed that she had relapsed and was considering alternative treatment with “naltrexone”. [6]

    [5] Campral is used in treating alcohol dependant patients to abstain from drinking.

    [6] Naltrexone can be prescribed to patients with alcohol dependence to reduce the dependence on alcohol.

39. In a Centrelink medical certificate dated 6 April 2017, Dr Ward listed alcohol excess as a medical condition which significantly impacts on Ms Frese’s capacity to work. He noted symptoms as “Daily EtOH[7] impaired function” and treatment as “nil”.

    [7] Alcohol

    Conclusion

40. The available evidence clearly demonstrates that Ms Frese had suffered alcohol dependence for several years prior to the date of claim and I am satisfied that the condition was fully diagnosed for the purposes of the Impairment Determination.

41. However, on consideration of the evidence I am not satisfied that during the qualification period the condition was fully treated and fully stabilised. Therefore a rating under the Impairment Tables cannot be assigned.

    MENTAL HEALTH CONDITION

42. In a letter dated 12 January 2016, Dr Atkins, registered psychologist noted Ms Frese “has been attending therapy with myself since 2013.  ……she has a number of psychological issues including depression, anxiety, social anxiety and panic attacks”.

43. In a Centrelink Medical Report dated 7 June 2016 Dr Atkins listed “major depression” and “borderline personality disorder” as medical conditions that had a significant impact on Ms Frese’s ability to function. 

44. Dr Atkins noted that Ms Frese had seen by a psychiatrist in January 2016 and referred to various psychological interventions as treatment but provided little detail as to the benefit or response to these “treatments”.

45. In a brief letter, dated 8 June 2016, Dr Wiren, general practitioner, suggested that Ms Frese suffered from a “depressive illness” with “alcohol” being a complicating factor. He also indicated that she was taking an “antidepressant” but provided no details.

46. In the JCA report of 18 August 2016, the assessor noted that Ms Frese did not agree that she had a “depressive illness” and saw herself as an “optimistic person” and “did not see herself as depressed”.

47. The assessor also noted that in discussion with Dr Foo he said that “the psychological condition is without difficulties or functional impacts at this time and no follow up is planned”.

48. In the medical certificate dated 6 April 2017 Dr Ward lists “depression” as a medical condition which had a significant impact on Ms Frese’s capacity to work. He noted current treatment as “nil”.

49. In a report dated 18 July 2017, Dr Wheeler, clinical psychologist, stated that Ms Frese had severe symptoms of “anxiety” and “depression” but did not actually provide a definitive diagnosis or treatment plan.

50. In a letter dated 24 August 2017, Dr Ward noted that Ms Frese has “now started on antidepressant medication”[8] and is regularly seeing a psychologist for “depression” but provided no additional details.

    [8] Lexapro- at the hearing Ms Frese stated that she “just stopped” the medication after  two months because  of concern about weight gain.

51. In a report dated 7 January 2019, Dr Chin, psychiatrist, noted that Ms suffered significant impairments in social, occupational, recreational and interpersonal function.

52. Dr Chin also noted that Ms Frese’s symptoms and impairments are consistent with DSM-V diagnoses of alcohol misuse disorder, ADHD, borderline personality disorder, ADHD, and mild neurocognitive disorder secondary to multiple aetiologies (meningioma compression, seizures and alcohol use).

    Conclusion

53. The available evidence, in my view, points to a conclusion that prior to the date of claim and during the claim period, Ms Frese had suffered symptoms and functional impairment consistent with a diagnosable mental health condition.

54. The precise diagnosis of Ms Frese’s mental health condition, at that time, is unclear because of the potential confounding impact of her other comorbidities including alcohol dependence, neurocognitive changes related to the presence and surgical treatment of the meningioma, the seizure disorder and side defects of the anti- epileptic medication.

55. During the qualification period there appeared to be some confusion about the cause of Ms Frese’s symptoms and no clear treatment strategy to deal with the complexity of her various medical conditions.

56. However, despite the absence of a clear psychiatric diagnosis, I am satisfied that, during the qualification period, Ms Frese’s psychological symptoms were not fully treated and fully stabilised and, therefore, a rating under the Impairment Tables cannot be assigned.

57. It follows that, during the qualification period, Ms Frese did not have a rating of 20 points or more under the Impairment Tables.

    DECISION

58. For reasons set out above, the Tribunal is satisfied that, during the qualification period, Ms Frese’s Impairment was not of 20 points or more under the Impairment Tables and, therefore, she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

59. The decision under review is affirmed.

I certify that the preceding  (fifty - nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

.................................[sgd].......................................

Associate

Dated: 9 August 2019

Date of hearing:	25 July 2019
Applicant:	In person
Advocate for the Respondent:	Dr S Thompson
Solicitors for the Respondent:	Department of Human Services