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

[2021] AATA 136

Humphreys and Secretary, Department of Social Services (Social services second review) [2021] AATA 136 (8 February 2021)

Division:GENERAL DIVISION

File Number:          2020/0130

Re:Lee Humphreys

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:8 February 2021

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – coronary artery disease – depression – post-traumatic stress disorder – morbid obesity – left wrist condition – other conditions –whether applicant has an impairment rating of 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991(Cth) s 94

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

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

REASONS FOR DECISION

Dr L Bygrave, Member

8 February 2021

INTRODUCTION

1. On 9 August 2018, Mr Lee Humphreys lodged a claim for disability support pension.

2. Services Australia,[1] both initially and on review, rejected Mr Humphrey’s claim for disability support pension on the basis that he did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

3. Mr Humphreys applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 10 December 2019, the SSCSD affirmed the decision of Services Australia.

4. Mr Humphreys subsequently made an application for review to the General Division of the Tribunal.

5. The application was heard by the Tribunal in Sydney on 28 January 2021. Mr Humphreys attended the hearing by conference telephone and provided oral evidence with the assistance of his aunt, Ms Rhonda Humphreys.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and require Mr Humphreys 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.

7. Further, Mr Humphreys must satisfy these criteria on the date he applied for disability support pension on 9 August 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

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

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

10. 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.

11. 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; whether there is corroborating evidence of the condition; 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.

12. 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.

13. Relevantly, 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:

    …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).

14. The Secretary accepts, and I agree, that Mr Humphreys has medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim period.

15. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Mr Humphreys 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 1 – Does Mr Humphreys have an impairment rating of 20 or more points under the Impairment Tables?

    Coronary artery disease

16. In a medico-legal report dated 9 October 2018, Dr Peter Giblin (medical assessor and orthopaedic surgeon) stated that Mr Humphreys had a myocardial infarct in November 2014, which was treated with two stents at Liverpool Hospital.

17. Mr Humphrey’s history of coronary artery disease is verified by the following medical evidence:

    ·A medical certificate completed by Dr Riton Deb (general practitioner) dated 12 March 2015 that sets out Mr Humphreys was diagnosed with heart failure and experienced symptoms of ‘exertional shortness of breath, chest pain’.[2]

    ·A medical report by Dr Hashim Kachwalla (cardiologist) on 3 June 2015 that outlined the results of a stress echocardiogram study, which showed ‘no evidence of exercise-induced ischemia with old left anterior descending artery territory injury’ and noted that Mr Humphreys ‘remains stable since his coronary artery stent procedure’.[3]

    [2] Exhibit T-T15, page 151.

    [3] Exhibit T-T18, page 159.

18. There are no further reports by Dr Kachwalla before the Tribunal, although Mr Humphreys’ Medicare report shows that he had further appointments with Dr Kachwalla between May 2016 and April 2019.[4]

    [4] See Exhibit R1.

19. In a medical letter dated 28 January 2020, more than 14 months after the claim period, Dr Deb wrote that Mr Humphreys was being treated for coronary artery disease by Dr Manish Jain (cardiothoracic surgeon) and requires bypass surgery.

20. At the hearing, Mr Humphreys told the Tribunal that his condition of coronary artery disease continued to be reviewed after the claim period and noted that he had not yet had surgery.

21. Based on the medical evidence that shows Mr Humphreys’ coronary artery disease continued to be reviewed by specialists and treatment of surgery was recommended more than 14 months after the claim period, I am satisfied that this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. For this reason, I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Depression and post-traumatic stress disorder

22. Mr Humphreys was involved in a motor vehicle accident in February 2014 and injured during a home invasion in August 2014.

23. As part of a coordinated team care agreement plan, Dr Deb referred Mr Humphreys to Ms Jelena Cuk (psychologist) on 23 January 2015. Mr Humphreys’ Medicare record confirmed his oral evidence that he attended counselling sessions with Ms Cuk in 2015 and 2016, although no reports by Ms Cuk have been filed with the Tribunal.

24. On 28 May 2018, Dr Christopher Canaris (workcover impairment assessor and psychiatrist) provided a medico-legal report, which outlined a history of Mr Humphreys’ injury from the motor vehicle accident and an assessment of his psychiatric impairments for insurance purposes. Dr Canaris neither provided a diagnosis nor discussed treatment, but assessed Mr Humphreys according to the ‘psychiatric impairment rating scales’ as follows:

    ·self-care and personal hygiene: moderate impairment

    ·social and recreational activities: moderate impairment

    ·travel: mild impairment

    ·social functioning: mild impairment

    ·concentration, persistence and pace: mild impairment

    ·employability/adaptability: totally impaired.[5]

    [5] Exhibit T-T24, pages 186-187.

25. Dr Angelo Virgona (medical assessor and psychiatrist) provided a further medical assessment for insurance purposes on 6 November 2018. Dr Virgona set out Mr Humphreys’ history pre- and post- the motor vehicle accident in February 2014 and concluded that Mr Humphreys:

    …was suffering a chronic anxiety and depressive disorder before the accident, consistent with a Chronic Adjustment Disorder, as well as a Substance Use Disorder. As a result of the accident and its reported consequences, he has had an aggravation of symptoms, but his symptoms are now of a greater severity and more consistent with a Persistent Depressive Disorder with Anxious Distress. The Substance Use Disorder is ongoing but less severe that it was pre-accident.[6]

    [6] Exhibit A5, page 10.

26. Dr Virgona further made the following assessment regarding Mr Humphreys’ degree of impairment:

    ·self-care and personal hygiene: moderate impairment

    He is dishevelled, only showers when he has appointments, only drinks milk, and neglects his home. He relies on his Nan and a friend to help.

    ·social and recreational activities: moderate impairment

    He reports no specific activities, but was seeing some friends, until money became an issue. He had been able to start relationships and visit his partners and be engaged with their lives. Currently, he reports no social activity and doesn’t appear to go out alone.

    ·travel: no impairment

    He reports being cautious as a driver but no significant travel restrictions.

    ·social functioning: moderate impairment

    He maintains his relationships with close family. After having been single for years, he has started two relationships but these have ended in part due to his aggression. It appears that his aggression has worsened since the accident. One suspects his aggression has been more in part due to stopping quetiapine.

    ·concentration, persistence and pace: mild impairment

    There was no obvious concentration difficulty during the long interview. He reports not being interested in doing things rather than specific issues with concentration. It is likely his current psychiatric symptoms lead to a mild impairment.

    ·adaptation: severe impairment

    He hadn’t worked for years before the accident but for occasional painting work for cash. He has since tried to work for a friend, but physical symptoms got in the way. Given the nature of his current psychiatric symptoms, he would only be fit for a few hours of work a week.[7]

    [7] Exhibit A5, pages 11-12.

27. In a letter dated 22 November 2018, Mr Nicholas Lavidis (clinical psychologist) stated that Mr Humphreys was suffering from depression and post-traumatic stress disorder following a vehicle accident in 2014. Mr Lavidis provided a further letter dated 5 December 2018 that set out Mr Humphreys had attended nine appointments from 13 June 2018 to 5 December 2018.

28. On 2 July 2020, more than 20 months after the claim period, Mr Lavidis reported that Mr Humphreys had attended 18 treatment sessions for his post-traumatic stress disorder and persistent depressive disorder (dysthymia) and had shown no improvement for his post-traumatic stress disorder to date. He opined that:

    Mr Humphreys’ condition has stabilised that is to say his [post-traumatic stress disorder] has become well settled or static with or without treatment and is not likely to remit despite treatment. In my opinion his symptomologies will not improve…[8]

    [8] Exhibit A7.

29. Mr Lavidis provided oral evidence at the Tribunal hearing. He confirmed that he commenced treating Mr Humphreys in June 2018 and that cognitive behavioural therapy treatment and extinction treatment for Mr Humphreys’ depression and post-traumatic stress disorder was continuing prior, during and after the claim period. Mr Lavidis said that Mr Humphreys’ symptoms of post-traumatic stress disorder did not subside with extinction treatment and it was on this basis that he opined in July 2020 that his condition is resistant to treatment.

30. Mr Lavidis confirmed to the Tribunal that Mr Humphreys had trialled different anti-depressant medications but stopped taking medication when he thought it was ‘not working’.

31. At the hearing, Mr Humphreys said he had taken anti-depressant medications at various periods since 2014. During 2018 and 2019, he thought he had taken medication for about six months but stopped because it made him feel drowsy and gain weight. This evidence is consistent with Mr Humphreys’ pharmaceutical records. Mr Humphreys said that he had not seen a psychiatrist for pharmacological review; he had attended one appointment with a psychiatrist in 2019 but the session ‘fell apart’ and he walked out.

32. Based on the medical evidence before the Tribunal, I am satisfied that Mr Humphreys’ conditions of depression and post-traumatic stress disorder were fully diagnosed, but not fully treated and stabilised during the claim period. This is because he had only recently commenced treatment with Mr Lavidis, there is no evidence that he was consistently taking anti-depressant medication and he had not seen a psychiatrist for pharmacological review. For this reason, I am unable to assign points in accordance with the Impairment Tables Determination.

    Morbid obesity

33. In his claim for disability support pension, Mr Humphreys listed ‘morbid obesity – 145 kg’ as a disability. This condition is also recorded in a Job Capacity Assessment report dated 17 December 2018 that noted Mr Humphreys reported review by his general practitioner.

34. At the Tribunal hearing, Mr Humphreys said that he had experienced weight issues since childhood; he had reduced his weight previously using ‘diet shakes’ but had subsequently put on weight due to medications. He confirmed that he has not been referred to a dietician or exercise physiologist for treatment.

35. I note that there is extremely limited medical evidence before the Tribunal in relation to Mr Humphreys’ condition of morbid obesity. This means I cannot be satisfied the condition was permanent during the claim period and cannot assign points in accordance with the Impairments Tables Determination.

    Left wrist condition

36. Mr Humphreys suffered a left wrist distal radius fracture in the motor vehicle accident in 2014. This is verified in the medico-legal report by Dr Giblin.

37. In a letter dated 23 January 2015, Dr Deb referred Mr Humphreys to a physiotherapist for ‘left wrist pain post injury’.[9]

    [9] Exhibit T-T12, page 137.

38. Mr Humphreys confirmed to the Tribunal that physiotherapy had improved his left wrist pain, but he had undertaken no further physiotherapy treatment since 2015. He further said that he has not been reviewed by a pain specialist.

39. Based on the available evidence, I am satisfied that Mr Humphreys’ left wrist condition was fully diagnosed, but not fully treated or fully stabilised during the claim period. This means that I am unable to assign points in accordance with the Impairment Tables Determination.

    Other conditions

40. I note that Mr Humphreys listed other conditions including chronic pain in his hips, back, neck, arm and elbow in his claim for disability support pension made on 9 August 2018.

41. The medico-legal report by Dr Giblin referred to the motor vehicle accident in 2014 causing injuries to Mr Humphreys that included soft tissue injury to his left shoulder, cervical spine, thoracic spine, lumbar spine, right hip and right shoulder, and a fracture of his right fibula. Dr Giblin further noted that Mr Humphreys had soft tissue injury to his left hip and skin scarring to his left elbow from the home invasion assault in August 2014.

42. At the Tribunal hearing, Mr Humphreys said he had not participated in any physiotherapy since 2015 or other treatment such as review by a pain specialist. The Tribunal is satisfied these conditions were fully diagnosed, but not fully treated or fully stabilised during the claim period. I am therefore unable to assign points in accordance with the Impairment Tables Determination.

    CONCLUSION

43. For the reasons set out above, I am satisfied that Mr Humphreys 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.

44. As I find that Mr Humphreys 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

45. The decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 8 February 2021

Date of hearing:	28 January 2021
Advocate for the Applicant:	Ms R Humphreys
Solicitors for the Respondent:	Ms B Dzang, Services Australia