Heather Pulham and Secretary, Department of Social Services
[2014] AATA 468
[2014] AATA 468
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4368
Re
Heather Pulham
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 11 July 2014 Place Sydney The decision under review is set aside and the matter remitted to the Respondent with a direction that:
1) Centrelink search its records for relevant documents concerning Ms Pulham’s mental health condition and make further enquiries about this condition where necessary.
2) The reconsideration is to take into account this further evidence.
............................[sgd]............................................
Deputy President RP Handley
Catchwords
SOCIAL SECURITY – disability support pension –– whether applicant’s conditions fully diagnosed, treated and stabilised – lack of evidence of previous treatment – decision under review set aside and remitted
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 cl 5
REASONS FOR DECISION
Deputy President RP Handley
Ms Pulham has applied for a review of the decision of the Social Security Appeals Tribunal (SSAT) to refuse her application for the Disability Support Pension (DSP).
BACKGROUND
Ms Pulham was born in 1969 and is aged 45. She is separated from her former partner and cares for her two children, aged 11 and 15.
Ms Pulham applied for the DSP on 25 September 2012. In her claim form, Ms Pulham stated that she suffered from “POD (sic), diabetes, anxiety, depression and bi-polar”. She stated that ‘POD leaves me breathless and mucus all day’, and her diabetes makes her lethargic.
She provided Centrelink with a Treating Doctors Report dated 24 September 2012 from her General Practitioner (GP), Dr Hassan Raza, as well as reports from Respiratory and Sleep Physicians Dr Richard Lee and Dr Paul Roach. In his reports dated 27 February 2012 and 9 July 2012, Dr Roach stated that Ms Pulham suffered from the following conditions:
(a)Mild Chronic Obstructive Pulmonary Disease (COPD)
(b)Pulmonary Mycobacterium Avium Complex (MAC) infection
(c)Depression/anxiety and Bipolar Disorder
(d)Significant marijuana smoking
(e)Type II Diabetes Mellitus
(f)Obesity
(g)Probable obstructive sleep apnoea
Dr Roach noted that Ms Pulham’s marijuana use was extensive, smoking 20 to 30 bongs per week. In his first report, dated 27 February 2012, he stated that he had concerns about treating her Pulmonary MAC Infection “given her bipolar disorder, ongoing marijuana and alcohol use”. In his second report, dated 9 July 2012, Dr Roach restated his reluctance to treat the condition because of her marijuana use. He stated that “she must stop smoking before any treatment will be successful”.
On 20 October 2012, Centrelink decided to reject Ms Pulham’s claim for DSP on the grounds that she did not have an impairment rating of 20 points or more. Ms Pulham applied for a review of this decision and supplied a Treating Doctor’s Report from Dr Roach, dated 12 November 2012. In his report, Dr Roach confirmed his diagnoses of COPD and Pulmonary MAC infection. With respect to her COPD, he described Ms Pulham’s symptoms as shortness of breath on exertion of less than 500 metres, as well as daily coughing and mucus production. Her MAC infection, he said, manifested in moderately severe daily symptoms of coughing, mucus production and chest pain.
On 6 February 2013, an Authorised Review Officer and delegate of Centrelink affirmed the original decision to refuse Ms Pulham’s claim for DSP. On 23 April 2013, this decision was also affirmed by the SSAT, which assigned 10 points to Ms Pulham’s lung conditions but found that her other conditions could not be assigned an impairment rating under the Impairment Tables because of a lack of evidence as to diagnosis, treatment and stabilisation. On 30 August 2013, Ms Pulham applied to the Tribunal for a review of this decision.
LEGISLATION AND ISSUES
Where an Applicant for DSP makes a claim within 14 days of contacting Centrelink and stating their intention to claim, the claim is regarded as having been made on the day Centrelink was contacted: s13(1) Social Security (Administration) Act 1999. Ms Pulham is deemed to have claimed DSP on 18 September 2012. For Ms Pulham’s application to succeed, she had to qualify for DSP on that date or within 13 weeks: s 42 and Sch 2 of the Social Security (Administration) Act 1999. The ‘relevant period’ for the Tribunal to consider is therefore 18 September 2012 to 18 December 2012.
In order to qualify for the DSP during the relevant period, s 94(1) of the Social Security Act1991 (the Act) requires that a person:
(a)must have a physical, intellectual or psychiatric impairment, or impairments,
(b)which are rated at 20 or more points according to the Impairment Tables, and
(c)must have a continuing inability to work as defined in the Act.
The Respondent accepts that Ms Pulham suffers from Mild COPD, Pulmonary MAC infection, Depression, Anxiety and Bipolar Disorder, and Diabetes. However, it argues that there is insufficient evidence for the Tribunal to accept that marijuana smoking, obesity and probable obstructive sleep apnoea have any impact on her ability to function.
The first question, therefore, is whether the conditions of marijuana smoking, obesity and obstructive sleep apnoea are impairments for the purposes of the Act. The Tribunal must then proceed to consider whether 20 or more points should be attributed to Ms Pulham’s conditions according to the Impairment Tables for the period 18 September 2012 to 18 December 2012. If not, her application for the DSP cannot succeed. If Ms Pulham’s impairments attract 20 or more impairment points, the Tribunal must consider whether she has a continuing inability to work.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination). The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7) For the purposes of subsection 6(6), 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 risk to the person.
If the Tribunal is satisfied that Ms Pulham’s conditions are fully treated, diagnosed and stabilised, and therefore permanent, it must assign those conditions a rating under the Impairment Tables. Clause 10 of the 2011 Determination provides relevantly:
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
…
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
EVIDENCE ABOUT MS PULHAM’S MEDICAL CONDITIONS
Ms Pulham was unable to travel to attend the hearing in person, and so I spoke to her by telephone. She expressed her frustration at the system and was very critical of her former GP, Dr Raza for his failure to properly document her conditions for Centrelink. She said she now sees a different GP at the Wallarah Bay Medical Centre, Dr Tariq Mahmoud, who has provided a medical certificate dated 8 March 2014. He states:
Ms Heather Pulham has various and complex medical issues. Many are of a physical nature while other of mental. However, both do interact.
Dr Mahmoud refers to Ms Pulham having diagnoses of Chronic Obstructive Airways Disease, Diabetes and “a complex dual diagnosis of severe mental disorder and substance abuse. Heather has features and [sic] genuine Bipolar disorder”. He says these are long-standing conditions. Dr Mahmoud says that more recently, Ms Pulham “has been diagnosed with lateral epicondylitis (Pain and inflamed elbow)”.
Ms Pulham provided an account of the many problems she has encountered in pursuit of her claim for the DSP. It is clear to me that she has been alienated by her dealings with Centrelink and by the requirements with which she has to comply. In my view, given the significant number of medical conditions affecting Ms Pulham, the assistance of a Centrelink social worker could be beneficial.
Ms Pulham said she has been treated for mental health problems for many years and had been a patient of the Adult Community Mental Health Team at Queenscliff. She stated she has had three hospital admissions before 2006, including to the Acute Inpatient Unit – East Wing – at Manly Hospital. Her treating psychiatrist there was Dr A Kompe [approximate spelling]. She has supplied a copy of her records to Centrelink, however, none of these records were produced by Centrelink for the Tribunal.
Ms Pulham said she is no longer being treated by Dr Roach for her lung conditions. She has not given up smoking and, as a result, Dr Roach refused to treat her. She is currently seeing Dr Lee again for her lung conditions and is also seeing a sleep apnoea specialist locally. Since using a sleep apnoea machine, her breathing at night has improved.
Ms Pulham also spoke of various family problems. While she is now separated from her partner and has control of her life, she is looking after her two children and has to share a bedroom with her daughter. She regularly catches infections from her daughter which aggravate her lung condition.
DISCUSSION
In order to determine whether Ms Pulham is entitled to the DSP, it is necessary to consider each of her conditions in turn.
Pulmonary MAC Infection
In his Treating Doctor’s Report dated 24 September 2012 her then GP, Dr Raza noted that she suffered from a Bilateral Lung MAC Infection with a date of diagnosis of 6 February 2012. Her symptoms were described as cough and shortness of breath on exertion, and he noted that she was being treated with Augmentin and Ventolin. Dr Raza estimated that her condition would persist for three months to two years, and would slightly improve.
The Tribunal has also been provided with multiple reports from Dr Roach to whom Ms Pulham was referred by Dr Lee. In his report dated 27 February 2012, Dr Roach indicated that Ms Pulham’s MAC Infection was still the subject of investigations at that time. He also stated his reluctance to treat Ms Pulham because of her smoking and substance abuse.
Nevertheless, in a subsequent Treating Doctor’s Report, dated 12 November 2012, Dr Roach indicated that treatment was being implemented. He stated that Ms Pulham’s treatment involved systemic chemotherapy, which was expected to take place across two years. Her condition was likely to last for more than two years and would decline if the treatment failed to clear the infection.
The Secretary submits that Ms Pulham’s Pulmonary MAC Infection was only in the early phase of active treatment during the relevant period, and her treating doctors were in disagreement as to how long the condition would last. The Secretary contends that the condition cannot, therefore, be regarded as fully treated and stabilised.
In my view, it is the evidence of Ms Pulham’s treating specialist, Dr Roach to which I should have most regard in respect of the relevant period. His report dated 12 November 2012 indicates that, while the treatment of the infection was to be long term, it was unclear at that time whether treatment would successfully improve her condition. In my view, until the outcome of that treatment became clearer, noting that Dr Roach began treating Ms Pulham in early February 2012, her condition cannot be said to have been fully stabilised during the relevant period. It is not therefore a condition to which an impairment rating can be attributed.
Chronic Obstructive Pulmonary Disease (COPD)
In his Treating Doctor’s Report dated 12 November 2012, Dr Roach provided a date of diagnosis for Ms Pulham’s COPD of 8 February 2012. He recorded that treatment consisted of inhaler therapy, ‘antibiotics and steroids as required’. As with her MAC infection, Ms Pulham’s symptoms were described as moderately severe with daily “cough, sputum production, chest pain”, as well as dyspnoea on exertion for less than 500 metres. Dr Roach noted that her condition would remain unchanged in the following two years.
The Secretary submits that while diagnosed, Ms Pulham’s COPD was not fully treated and stabilised during the relevant period, and cannot, therefore, be accorded an impairment rating. I reject this. There is evidence of ongoing treatment and a likelihood that the condition would remain unchanged over the following two years. In such circumstances, Ms Pulham’s COPD should be regarded as fully diagnosed, treated and stabilised, and I must proceed to assign an impairment rating under the Impairment Tables.
As COPD affects respiratory function, the relevant Impairment Table, is Table 1 - Functions Requiring Physical Exertion and Stamina. Evidence of frequent symptoms (shortness of breath, fatigue) which affect Ms Pulham’s ability to walk and perform household tasks indicates that an impairment rating of 10 points is appropriate in respect of moderate functional impact.
Depression/Anxiety and Bipolar Disorder
In his Treating Doctor’s Report dated 24 September 2012, Dr Raza diagnosed Ms Pulham with ‘Depression/Bipolar Disorder’. Despite listing the condition in the table for conditions that are well managed and cause minimal impact, Dr Raza stated that Ms Pulham’s mental health condition had a moderate to severe impact on her ability to function. Nevertheless, he expected significant improvement in her condition.
Other than Dr Raza, and several brief references in the reports of Dr Roach, the only other medical evidence of Ms Pulham’s mental health condition before the Tribunal is an undated report from Dr Brooks, clinical psychologist, which appears to have been produced in February 2014. Dr Brooks stated that Ms Pulham was referred to the Cannabis Clinic at Wyong Alcohol and Drug Service on 12 November 2013 and had since attended four counselling appointments. Dr Brooks said Ms Pulham’s “reported symptoms are consistent with a diagnosis of Bipolar Affective Disorder”, and, on a review of Ms Pulham’s hospital notes, noted that she “has had periods when she has become manic and needed hospitalisation”. Dr Brooks stated that Ms Pulham “will need ongoing fortnightly counselling and regular psychiatric reviews to manage her mental health issues”.
As noted above, Ms Pulham told me that she had been treated for mental health problems over many years. She stated that she had previously provided Centrelink with copies of documents from the Adult Community Mental Health Team at Queenscliff and Manly Hospital, where she was treated by a psychiatrist. No such documents were provided to the Tribunal, although it is evident from Dr Brooks’ report that she has recently accessed such documents. If Centrelink had access to these documents, it is of concern that they were not considered in the decision-making process. Centrelink should make a thorough search for relevant documents and if they are located and relevant, it may necessary for Centrelink to revise its decision.
These documents could help clarify a number of issues pertaining to an assessment of whether Ms Pulham’s mental health condition was fully treated, diagnosed and stabilised. There is limited evidence available to the Tribunal as to the correct diagnosis for Ms Pulham’s condition. Dr Brooks suggests the diagnosis should possibly be Bipolar Affective Disorder. The JCA Report dated 11 October 2012, also referred to a diagnosis of Bipolar Affective Disorder which had been verified by medical evidence, although this evidence was not identified. It is unclear why the assessor then proceeded to note that “There is no corroborating evidence from a clinical psychologist or psychiatrist.” Ms Pulham’s evidence is that she has been under the care of a psychiatrist over a significant period and if the relevant documentation can be accessed, this may provide a diagnosis.
The nature and extent of Ms Pulham’s treatment is also unclear. Ms Pulham’s evidence is that she was hospitalized on three occasions for this condition in the period prior to 2006. Dr Roach’s report dated 9 July 2012 indicates that Ms Pulham was taking Olanzapine, which is an anti-psychotic medication, and the JCA report confirms that Ms Pulham was being treated with medication. Although Dr Brooks’ 2014 report suggests that Ms Pulham should undergo counselling and review, there is no suggestion, or any other evidence before the Tribunal to suggest that this had taken place during the relevant period. It is also unclear whether the emphasis of the counselling was on Ms Pulham’s substance abuse, given that Dr Brooks works for the Wyong Area Drug and Alcohol Service.
In my view, Centrelink needs to make a thorough search for relevant documents and, if necessary, make further enquiries of the Community Mental Health Team at Queenscliff and of Manly Hospital. This may throw further light on the history of Ms Pulham’s condition, on the correct diagnosis, and on whether Ms Pulham’s condition can be considered fully treated and stabilised. On the basis of the evidence currently available to me, I am unable to make an appropriate finding.
Type II Diabetes
Dr Raza’s Treating Doctor’s Report, dated 24 September 2012, states that Ms Pulham suffers from Non-Insulin Dependent Diabetes Mellitus (Type II Diabetes). He provided a date of diagnosis of 21 May 2012, with symptoms of “polydipsia, lethargy, tiredness’. Dr Raza recorded that she was being treated with Dialex EX and Crestor, and would be referred to an endocrinologist for review. He stated that the condition limited Ms Pulham’s ability to care for herself, and her condition was only expected to “somewhat improve” over the next two years.
Ms Pulham also provided the Tribunal with a report dated 8 March 2014 from her current GP, Dr Mahmoud. He stated that the disease affects Ms Pulham’s “vision, circulation and kidney [sic]”, and that it is most likely to grow worse over the next two years.
There is no evidence as to whether Ms Pulham’s condition was reviewed by an endocrinologist and Dr Raza’s report is somewhat equivocal about whether her condition was likely to improve. In my view, there is insufficient evidence to find that Ms Pulham’s Diabetes was fully treated and stabilised during the relevant period. It cannot, therefore, be accorded an impairment rating. However, it may well be that the current situation is different should Ms Pulham make a new claim for the DSP.
Significant Marijuana Smoking, Obesity and Obstructive Sleep Apnoea
The Respondent contends that there is insufficient evidence to establish that Ms Pulham’s marijuana smoking, as well as her obesity and obstructive sleep apnoea satisfy the definition of impairment, and therefore do not meet the first requirement to qualify for the DSP, that is that a person has a physical, intellectual or psychiatric impairment.
In considering whether an Applicant’s condition constitutes an impairment under s 94(1)(a), the Tribunal must determine whether that condition causes a loss of function: Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [38-39]. This is distinguished from the question as to whether that loss of function impacts upon an applicant’s ability to work.
There was no specific evidence referrable to obesity before the Tribunal which would enable any assessment to be made.
Significant Marijuana Usage
In his report dated 27 February 2012, Dr Roach states that Ms Pulham smokes 20 to 30 bongs per week. There is limited evidence as to the impact of such marijuana usage on her ability to function. A letter from Dr Lee, dated 8 February 2012, records that she has “a history of drug-induced psychosis”. In her 2014 report, Dr Brooks stated that Ms Pulham “smokes cannabis daily and meets the criteria for Substance Dependence Disorder”. Although this diagnosis comes outside the relevant period, Ms Pulham’s substance abuse detailed in the report was largely consistent with that during the relevant period.
Ms Pulham, was only referred to the Cannabis Clinic for treatment of her substance abuse on 12 November 2013. Up until that time, there is no evidence that she was undergoing treatment for her substance abuse. I am not therefore satisfied that there is evidence to establish that her condition was fully treated and stabilised during the relevant period. Thus, it cannot be accorded an impairment rating.
Obstructive Sleep Apnoea
Dr Roach also lists Ms Pulham as suffering from “probable obstructive sleep apnoea”. There is no further medical evidence pertaining to this condition nor a firm diagnosis from a medical practitioner before the Tribunal. Ms Pulham’s evidence is that she is now being treated by a specialist locally and has been using a sleep apnoea machine. While I find that Ms Pulham’s condition was not fully diagnosed, treated and stabilised during the relevant period and therefore cannot be accorded an impairment rating, given her evidence, it may well be that the current situation is different.
Continuing Inability to Work: Program of Support
In the event that Ms Pulham satisfies s 94(1)(b) of the Act, the further issue for the purpose of deciding whether Ms Pulham is qualified for the DSP is whether she had a continuing inability to work (s 94(1)(c)). If, as seems probable, none of her conditions alone can be assigned 20 points under a single Impairment Table, in order to satisfy the requirement that she has a continuing inability to work, Ms Pulham must have actively participated in a program of support for a period of 18 months at the date of claim.
In the three years prior to her application for the DSP, Ms Pulham participated in programs with the following providers:
a. Salvation Army (24 November 2009 to 24 February 2010, and 16 January 2012 to 25 September 2012 noting Ms Pulham was granted a temporary medical exemption between 30 April and 29 June 2012).
b. Job Centre Australia Wyong (18 February 2011 to 8 March 2011).
Ms Pulham had therefore participated in a program of support for approximately 10 months at the date of her claim. She has since engaged further in Salvation Army programs, however, this cannot be considered for the purposes of this claim for DSP. As such, she does not satisfy the 18 month requirement for a Program of Support.
The Tribunal has not been presented with evidence to suggest Ms Pulham was unable to improve her capacity for employment through the above programs of support (Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 cl 5(4), 5(5)), nor is there evidence that Ms Pulham completed a program of support that ran for less than 18 months (cl 5(3)).
Conclusion
In view of the inadequate assessment of Ms Pulham’s mental health condition, the appropriate outcome is for the decision under review to be set aside and remitted to the Respondent for reconsideration with a direction that Centrelink search for relevant medical documents in its possession about Ms Pulham’s mental health condition and make further enquiries where necessary. The reconsideration should take into account this further evidence.
Ms Pulham’s overall condition has evidently changed since 2012. I note also that she is now being treated by a sleep apnoea specialist and has attended counselling to address her substance abuse. It may therefore be in her interests to make a new application for the DSP at the earliest opportunity.
DECISION
The decision under review is set aside and the matter remitted to the Respondent with a direction that:
1) Centrelink search its records for relevant documents concerning Ms Pulham’s mental health condition and make further enquiries about this condition where necessary.
2) The reconsideration is to take into account this further evidence.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley
.............................[sgd]...........................................
Associate
Dated 11 July 2014
Date(s) of hearing 8 July 2014 Date final submissions received 8 July 2014 Applicant In person Advocate for the Respondent D McLaren; Department of Human Services
0
1
0