Glenn Daley and Secretary, Department of Social Services

[2015] AATA 412

[2015] AATA 412

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5826
Re	Glenn Daley
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	12 June 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

12 June 2015

BACKGROUND

1. On 10 June 2014, Mr Daley lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. Mr Daley did not specify any medical conditions in his claim form but relied on the Centrelink medical report provided by his general practitioner (“GP”), Dr Choueifati, dated 29 April 2014.

3. In that report, Dr Choueifati listed “anxiety disorder” and “cervical and lumbar degeneration of vertebrae” as conditions with the most functional impact. Conditions that were generally well managed and which caused minimal or limited impact were noted as brain trauma, depression, left eye totally blind, and knee pain.

4. In a supplementary report dated 3 July 2014, Dr Choueifati listed “depression and anxiety disorder” and “[left] eye blindness” as conditions with most functional impact. Conditions that were generally well managed and which caused minimal or limited impact were noted as “arthritis, poor dental work, skin sun damage, alcohol dependence, back/neck pain, knee pain, vertigo, chronic headaches, neurological dysfunction”.

5. Mr Daley’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

6. In this proceeding Mr Daley seeks review of the SSAT decision of 14 October 2014.

7. At the hearing Mr Daley was self-represented and was able to give oral evidence.

   ISSUES

8. In order to qualify for DSP, Mr Daley must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 10 June 2014 and 9 September 2014 (the claim period).

9. Section 94(1) of the Act provides that 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;

   …

10. The Respondent concedes that Mr Daley suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act.

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

12. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition 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

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

13. 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)”.

14. The Respondent accepted that Mr Daley is totally blind in the left eye and that this condition is permanent. The Respondent contends that this condition warrants a rating of 5 points under Impairment Table 12.

15. Mr Daley contends that his impairment arising from the left eye warrants a rating of 10 points under Impairment Table 12.

16. The Respondent contends that during the claim period, all the other medical conditions listed by Dr Choueifati were not fully diagnosed, fully treated and fully stabilised. Therefore they were not permanent for the purposes of the Determination and could not be assigned a rating under the relevant Impairment Tables. This means that during the claim period Mr Daley’s impairment rating was only 5 points and therefore did not satisfy s 94(1)(b) of Act.

17. It follows that I must consider whether during the claim period Mr Daley’s impairments rated 20 points or more under the Impairment Tables. If Mr Daley meets this requirement then I will need to determine whether he has a continuing inability to work.

    MENTAL HEALTH DISORDER AND ALCOHOL DEPENDENCE

18. Mr Daley claims that he has suffered various mental health problems for many years and attributes these problems to stress caused by the breakdown of his marriage and unresolved related legal issues. Also in March 2013, an unprovoked assault resulted in fractured facial bones and blindness in the left eye.

19. Mr Daley told the Tribunal that he is dependent on a significant daily intake of alcohol in the form of cask wine, which he uses as self-medication. He stated that alcohol helps with his anxiety and depression and keeps him calm. He told the SSAT that alcohol also acts as an effective analgesic for his neck, back and knee pains.

20. Mr Daley indicated that currently he is not on any medication for his mental health symptoms and has sought no treatment for his apparent alcohol dependence. His GP had advised him to reduce his alcohol intake but had not suggested any treatment or referred him for any specialist assessment. Mr Daley appeared to be convinced that his dependence on alcohol would resolve when his legal issues were finalised.

21. The medical evidence in respect of Mr Daley’s mental health problems and alcohol dependence is patchy and somewhat limited, particularly in respect of any documented impairment during the claim period.

22. Mr Daley told the Tribunal that in 2009 he began regular sessions with a registered psychologist, Mr McKinley, and continued seeing him for several years.

23. In a Centrelink medical report dated 29 February 2012, Mr McKinley notes a diagnosis of “Bipolar” but provides no rationale in support of this diagnosis.

24. I note that Mr McKinley was not a clinical psychologist and apart from the 2012 report, there is no other documentary evidence in respect of any treatment provided to Mr Daley by Mr McKinley.

25. In a Centrelink medical report dated 25 October 2010 Dr Scally, GP, notes a diagnosis of “? Bipolar disorder / ? Depression with psychotic features”. He indicates that psychiatric assessment is to be arranged and initiates treatment with Zyprexa. He does not provide satisfactory reasons for the provisional diagnosis.

26. Mr Daley told the Tribunal that Zyprexa did not help and caused significant side effects so that he stopped taking it after about six months.

27. Mr Daley explained that in 2010 he was seen by a psychiatrist on three occasions and was told that there is no treatment and he cannot be helped.

28. In the report of 29 April 2014, Dr Choueifati notes that Mr Daley’s anxiety disorder and depression is being treated with Aropax. Mr Daley told the SSAT that he had stopped taking this medication and had not been on any medication for many months.

29. In the supplementary report of 3 July 2014, Dr Choueifati raises the possibility that Mr Daley has PTSD and notes that he has referred Mr Daley to a clinical psychologist but provides no other relevant details.

30. Mr Daley told the Tribunal that he did see a clinical psychologist on two occasions sometime before November 2014, but stopped seeing “her” because “she” would not provide a report without extra payment.

31. In a brief report dated 27 November 2014 Mr Tsomis, clinical and forensic psychologist, notes that he saw Mr Daley on two occasions and self-reported numerous psychological symptoms.

32. Mr Tsomis stated that Mr Daley presented as very distressed about child support and other family issues and expressed concern about Mr Daley’s ongoing mental health.

33. Mr Tsomis does not make a specific diagnosis or describe any planned treatment apart from an aim to reduce Mr Daley’s excessive alcohol consumption. He does indicate that he will continue to monitor Mr Daley in case his condition should worsen and he require acute psychiatric care.

34. In a brief report dated 30 March 2015, which is essentially the same as his earlier report, Mr Tsomis notes that he saw Mr Daley on seven occasions between 18 November 2014 and 5 March 2015 and records Mr Daley’s various self –reported symptoms.

35. Again Mr Tsomis does not provide a definitive diagnosis and simply states that “At this stage it appears his medical condition is not likely to improve, though I will continue to monitor him and aim to reduce his excessive alcohol consumption.”

36. I accept that during the claim period Mr Daley suffered symptoms consistent with a  mental health condition.

37. However, as there is no evidence of a diagnosis being made by a psychiatrist or clinical psychologist prior to or during the claim period, the requirements of Impairment Table 5 have not been satisfied, and a rating for functional impact on activities involving mental health function cannot be assigned.

38. In respect of Mr Daley’s claimed alcohol dependence the only reference to this condition prior to or during the claim period is  in Dr Choueifati’s supplementary report of 3 July 2014, where it is listed as a condition that is generally well managed and causing minimal or limited impact on function.

39. Dr Choueifati provides no reasons to support the diagnosis and no details as to onset, treatment or prognosis, nor any assessment of Mr Daley’s impairment as a result of this condition.

40. Even if I were to accept that an appropriate diagnosis of alcohol dependence was made prior to or during the claim period, there is no evidence of any concurrent or planned treatment for this condition.

41. The reports of Mr Tsomis are of no assistance as he did not see Mr Daley until after the end of the claim period and also did not provide a diagnosis or any treatment plan.

42. Accordingly, I am satisfied that during the claim period the condition of alcohol dependence was not fully treated and stabilised which means that a rating under Impairment Table 6 cannot be assigned.

    THE LEFT EYE CONDITION

43. Mr Daley told the Tribunal that he maintains a driver’s licence and drives occasionally, but does not drive at night or in peak hour traffic because of his monocular vision, restricted movement in his neck and poor concentration. He agreed that he has normal vision in the right eye and does not use any visual aids apart from reading glasses.

44. In a letter dated 6 June 2013, Dr Rosenberg, an ophthalmic surgeon, notes that Mr Daley’s visual field in the right eye is normal but “has a tiny degree of myopia and corrects to a good 6/5”, and that Mr Daley needs reading spectacles for presbyopia.

45. After due consideration of the evidence and the descriptors in Impairment Table 12, I am satisfied that the appropriate impairment rating for Mr Daley’s eye condition is 5 points.

    SPINE CONDITION

46. Mr Daley told the Tribunal that he injured his neck about 30 years ago and now has intermittent neck pain and restricted movement. He also suffers intermittent back pain although there is no history of a specific injury.

47. The medical evidence before the Tribunal provides no diagnosis for Mr Daley’s claimed spine condition and no meaningful assessment of the functional impact of these conditions.

48. I am satisfied that a rating under the Impairment Tables cannot be assigned.

    OTHER CONDITIONS

49. In respect of the claimed conditions of knee pain, headaches, vertigo, and neurological dysfunction I find that there is insufficient evidence before the Tribunal to come to any reasonable conclusion as to diagnosis, treatment or functional impact and, therefore, I am satisfied that a rating under the Impairment Tables cannot be assigned.

    CONCLUSION

50. For the reasons set out above, I am satisfied that Mr Daley’s rating under the Impairment Tables was not 20 points or greater, and therefore he did not satisfy s 94(1)(b) of the Act and was not qualified for DSP.

    DECISION

51. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Dated 12 June 2015

Date of hearing	28 April 2015
Applicant	In person
Solicitor for the Respondent	Ms G Heggen, Department of Human Services