Ian Campbell and Secretary, Department of Social Services
[2014] AATA 857
•19 November 2014
[2014] AATA 857
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6651
Re
Ian Campbell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 19 November 2014 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
Senior Member P W Taylor SC
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Conditions which do not receive points under Impairment Tables – No severe impairment – Condition of depression not fully treated or stabilised – No continuing inability to work – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 94(1)(b), 94(1)(c), 94(2)(a), 94(2)(b), 94(5)
Social Security (Administration) Act 1999 (Cth), Sch 2, cl 4(1)
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), rules 3, 6(1), 6(3), 6(4), 6(5), 6(6), 11(1)(b), 11(1)(c), 11(2)
Social Security and Other Legislation Amendment Act 2011 (Cth)The Family Assistance and Other Legislation Amendment Act 2011 (Cth)
CASES
Pelka v Secretary, Department of Social Services [2014] AATA 81
Yazdari v Secretary, Department of Social Services [2014] AATA 34
REASONS FOR DECISION
Senior Member P W Taylor SC
19 November 2014
For 14 years, before he began a period of incarceration in June 2010, Mr Campbell received a disability support pension. His disability was probably related to the onset of osteoarthritis in about 1995. He had knee replacement surgery, for his right knee, in September 2006. In March 2007 he had a left knee replacement.
On 5 June 2013, following his release, Mr Campbell reapplied for a disability support pension. His application identified four disabling conditions as restricting – (i) back problems, (ii) liver cancer, (iii) diabetes and (iv) the osteoarthritis to which I have referred. His application stated that none of the conditions either made it difficult for him to care for himself or was the subject of any current medical treatment.
Mr Campbell’s 2013 application has to be assessed in the light of significant changes to the disability support pension qualifications that came into effect between 3 September 2011 and 1 January 2012. Those changes were principally contained in the Social Security and Other Legislation Amendment Act 2011 and the Family Assistance and Other Legislation Amendment Act 2011. But they were complemented by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011) (“the 2011 Impairment Determination”) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. The changed qualification criteria led to Centrelink rejecting Mr Campbell’s application. The initial rejection was on 7 August 2013 and it was repeated in a 9 October 2013 review. The Social Security Appeals Tribunal (“SSAT”), on 29 November 2013, affirmed the Centrelink rejection decision.
There are some differences between Mr Campbell’s application and the contents of various medical reports from two of Mr Campbell’s treating doctors (Dr Kondeva –
13 June 2013 report; Dr Gazi – 13 August 2013 report). There are also some differences between Mr Campbell’s application and a Job Capacity Assessment Report dated
24 June 2013. Despite those differences, including some differences in the way essentially similar conditions were described, the SSAT accepted that Mr Campbell had eight relevant medical conditions.
Mr Campbell’s disability support pension qualification depends on satisfaction that, prior to 4 September 2013 (i.e. within 13 weeks after his application – see Social Security (Administration) Act 1999 Schedule 2 clause 4(1)):
(a)he had a “permanent” condition – in the sense of being fully diagnosed, treated and stabilised, and likely to persist for more than two years: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 rules 6(3)-(7)
(b)his “permanent” medical conditions resulted in a functional impairment affecting his capacity to work: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 rules 3 & 6(3)
(c)his functional work impairments had an impairment rating of at least 20 points under the relevant Impairment Tables: see s 94(1)(b) of the Social Security Act 1991 & Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Part 3
(d)those functional impairments themselves prevented him from doing any (ordinarily remunerated) work, for at least 15 hours per week, within the next two years: see Social Security Act 1991 s 94(1)(c); 94(2)(b) & 94(5).
The SSAT found that some of Mr Campbell’s medical conditions, even if characterised as “permanent”, did not result in a functional impairment to which an Impairment Table rating could be assigned. Those conditions were:
(a)insulin-dependent Type II diabetes mellitus
(b)left foot neuropathy and heel spur.
The SSAT also found that the majority of Mr Campbell’s reported medical conditions could not be regarded as “permanent”, and could not be allocated an Impairment Table rating. Those conditions were:
(c)fatty liver disease
(d)chronic bronchitis
(e)hand, elbow and shoulder pain
(f)osteoarthritis and chronic knee pain
(g)lower back pain
(h)depression.
The SSAT’s findings were substantially consistent with Dr Kondeva’s 13 June 2013 report. Dr Kondeva had been Campbell’s GP from October 2008 to May 2010, and saw him just a few days before providing the 13 June 2013 report. Dr Kondeva reported that Mr Campbell’s osteoarthritis and knee pain had the most impact on his functional abilities and caused difficulties with walking, standing and lifting. The other conditions, diabetes, depression, liver disease and bronchitis had only a minimal or limited impact on Mr Campbell’s functional abilities.
Dr Gazi apparently followed Dr Kondeva as Mr Campbell’s GP. He first saw Mr Campbell on about 25 June 2013. He provided reports dated 6 and 13 August 2013.
Dr Gazi’s 13 August 2013 report described Mr Campbell’s complaints of chronic lower back pain, and knee pain, as his most significant conditions and noted that they restricted his ability to stand walk, bend and sit. Dr Gazi thought Mr Campbell’s lower back pain would fluctuate, but he felt unable to give a prognosis. Dr Gazi planned to refer Mr Campbell to a specialist for further treatment in relation to his knee pain. Dr Gazi reported that Mr Campbell’s diabetes, left foot neuropathy, fatty liver and depression were well managed conditions that had minimal impact on Mr Campbell’s functional capacities.
The contents of the reports from Drs Kondeva and Gazi explain why the SSAT attached little significance to Mr Campbell’s diabetes, left foot neuropathy, fatty liver and depression. In addition, Dr Gazi’s reports, particularly his 13 August 2013 report with its uncertainty about the prognosis for Mr Campbell’s back pain, and the proposed specialist referral for his knee pain, probably provide the reason why the SSAT did not regard those conditions as “permanent” and eligible for an impairment rating.
In the present proceedings the Secretary partly differs from the SSAT’s conclusions, and accepts (as had Centrelink in its 9 October 2013 decision) that Mr Campbell’s knee condition was “permanent” and had a 5 point impairment rating. But the Secretary adheres to the view that none of Mr Campbell’s other medical conditions qualify for impairment ratings under the relevant Impairment Tables. For his part Mr Campbell contends that his long previous history as a disability support pension recipient, and the totality of the medical records he has made available to Centrelink, comfortably demonstrate his relevant qualification for that pension. That contention merits careful assessment, even though Mr Campbell effectively accepts that some of his medical conditions have limited impact on his functional abilities.
INSULIN-DEPENDENT DIABETES MELLITUS
There are reports about Mr Campbell’s diabetic condition that date back to May 2008 when his GP (then Dr Kenny at Granville) referred him to a physician for help in managing his condition. There are also various recent medical reports about his diabetic condition – from Dr Kondeva (13 June 2013), Dr Gazi (13 August 2013), Dr Reben
(3 March and 2 April 2014). Drs Kondeva and Gazi both considered that
Mr Campbell’s diabetes caused minimal functional impairment. Dr Reben described
Mr Campbell’s diabetes as poorly controlled, but opined that it gave rise to only “mild”, but unspecified, functional impairment.The Secretary’s submission is that the condition cannot be considered as fully treated and stabilised. It is perhaps consistent with that submission that an October 2013 report from the Westmead Hospital recorded that Mr Campbell had attended an education session about strategies for long term glycaemic control, and would return to attend further educative sessions, particularly concerning diet and foot care. There is also evidence that in November 2013 Dr Gazi referred Mr Campbell to a diabetic educator.
I do not think however, that it would be correct to regard Mr Campbell’s diabetic condition as anything other than permanent. The evidence discloses that Mr Campbell’s diabetic condition is long standing. Although it has at times been poorly controlled (an observation that Dr Reben made in his March and April 2014 reports) the periodic variations occur in the symptoms of Mr Campbell’s long standing condition seem more indicative of the nature of the condition itself, specifically the difficulty of achieving consistent reliable control of those symptoms, rather than detracting from its proper characterisation as “permanent” for the purpose of applying the Impairment Tables.
The Secretary’s alternative submission is that if Mr Campbell’s diabetic condition should be regarded as eligible for an impairment rating, the appropriate rating is nil. The basis for this alternative contention is found in the reports of Dr Kondeva (13 June 2013) and Dr Gazi (13 August 2013). Both of those reports consider that Mr Campbell’s diabetes caused minimal functional impairment. A report by Dr Reben (dated 2 April 2014) noted that Mr Campbell had “mild functional impairment attributable to his diabetes. All of these reports are consistent with the fact that Mr Campbell gave no evidence of any significant difficulties associated with his diabetic condition. Indeed Mr Campbell described his diabetic condition as “done and dusted” – by which he meant that it had been thoroughly investigated and was being appropriately medicated. He reported that he had recently changed his medication and that this had resulted in better control of his blood sugar levels.
I agree with the Secretary’s alternative submission, and consider that Mr Campbell’s diabetic condition does not give rise to any impairment to which a rating (other than nil) can be applied under the Impairment Tables.
LEFT FOOT NEUROPATHY – SPUR
The SSAT noted that x rays in 2009 showed that Mr Campbell had a plantar spur. Reference to that spur was included in Dr Gazi’s August 2013 report – but only as one of a group of conditions that he characterised as generally well managed and which had limited or minimal impact on Mr Campbell’s functional abilities. That categorisation of the condition is consistent with the fact that Dr Kondeva did not even include it in his (June 2013) report.
It is also consistent with Mr Campbell’s evidence (to the SSAT) that he wore a support shoe and had learned to live with the problem of his heel spur. Mr Campbell gave no additional evidence about his heel spur in the present review proceedings. Consequently I am affirmatively satisfied that it does not result in any impairment to which a rating (other than nil) can be applied under the Impairment Tables.
OTHER IMMATERIAL CONDITIONS
Several of Mr Campbell’s other medical conditions are (for reasons I will detail) also immaterial to his qualification for disability support pension. Those conditions are (i) his fatty liver disease (ii) bronchitis and (iii) his hand, elbow and shoulder pain. I address those conditions in the next three sections of these reasons.
FATTY LIVER DISEASE
There is an ultrasound report of January 2006 reporting features consistent with fatty change in Mr Campbell’s liver, but not evidencing any definite focal pathology. In their respective reports Drs Kondeva (13 June 2013) and Gazi (13 August 2013) characterised Mr Campbell’s liver condition as one that was generally well managed and had limited or minimal impact on his functional abilities.
At the time of his report Dr Gazi had received a 2 August 2013 ultrasound report that described “severe fatty infiltration of the liver but no discrete lesion”. As a result of that report Dr Gazi referred Mr Campbell to Dr Prematilake, a consultant physician. Dr Prematilake dismissed the suggestion that Mr Campbell had fatty liver disease. He said he had contacted the clinician responsible for the 2 August 2013 ultrasound, who proposed to amend the report to indicate that the changes within the liver were more in keeping with “mild” fatty change. But Dr Prematilake regarded even such an amended report as an unjustified diagnosis. Dr Prematilake’s view, based on his own review of the ultrasound scan, was that Mr Campbell did not have fatty liver disease, and was certainly not disabled by it.
The SSAT noted that Mr Campbell had recently been reviewed by a liver specialist, and attributed to him an understanding that the specialist would continue to monitor his condition. The SSAT concluded that the scant information about Mr Campbell’s liver condition precluded its characterisation as a “permanent” condition. I take a different view. I regard the evidence, particularly Dr Prematilake’s September 2013 report as demonstrating, quite conclusively, that Mr Campbell does not have a liver condition of any significance. There is no adequate diagnosis, no meaningful symptomatology, and no treatment – other than concern about the management of his diabetes and control of his obesity. Consequently, there is nothing of significance to document. And there is no condition that warrants any rating under the Impairment Tables.
CHRONIC BRONCHITIS
In his June 2013 report Dr Kondeva included Mr Campbell’s bronchitis as one of the conditions that he characterised as generally well managed and which had limited or minimal impact on Mr Campbell’s functional abilities. Dr Gazi (in his August 2013 report) did not even include bronchitis as one of Mr Campbell’s relevant medical conditions. Neither did Mr Campbell give any evidence of any significant impairment associated with his bronchiatric condition.
The Secretary is probably correct in the submission that there is insufficient medical evidence to justify an affirmative conclusion that Mr Campbell’s bronchitis has been fully diagnosed, treated and stabilised – i.e. “permanent” for the purposes of the Impairment Tables. But I am, in any event, satisfied that there no evidence that Mr Campbell’s bronchiatric condition results in any significant impact upon his functional abilities. Consequently, on both grounds, Mr Campbell’s bronchiatric condition does not merit any rating (other than nil) under the Impairment Tables.
HAND, ELBOW AND SHOULDER PAIN
There is no reference to any hand, elbow or should condition in any of the June and August 2013 reports from Drs Kondeva and Gazi. It is not referred to in the June 2013 JCA report.
There is a 4 November 2013 report on x rays of both of Mr Campbell’s hands and his left elbow. There is also a report of an ultrasound of his left elbow. The hand x rays revealed no abnormality in either hand. The x ray of the left elbow revealed no abnormality (other than one small spur). The ultrasound suggested only a long standing partial tear of the common extensor tendon, but no other abnormality.
The SSAT regarded these conditions as not substantiated by any significant medical documentation. There is, in fact, no material of that kind other than the November 2013 report. The paucity of evidence required the SSAT to conclude that Mr Campbell’s condition did not satisfy the criteria for the allocation of any points under the relevant Impairment Tables.
The Secretary submits that the SSAT’s decision was correct, and that the Tribunal should reach the same conclusion – because there is insufficient medical evidence to establish that the condition has been fully treated and stabilised. I agree with that submission. I also find that there is no evidence that this condition resulted (in the period relevant to Mr Campbell’s pension application) in any significant impact upon Mr Campbell’s functional abilities.
OSTEOARTHRITIS / CHRONIC KNEE PAIN
Dr Kondeva’s 13 June 2013 report recounted the chronology of Mr Campbell’s knee replacement surgery in 2006 and 2007, the subsequent complicating onset of osteomyelitis in 2007 and the recurrence of knee problems in 2009. Dr Kondeva noted that Mr Campbell had a history of obesity and diabetes, and opined that these had contributed to the recurrence of his knee problems in 2009. Dr Kondeva described Mr Campbell as having difficulty with standing, sitting, lifting and sleeping. He also had low back pain, depressed mood and lack of concentration. Dr Gazi, in his August 2013 reports also commented on Mr Campbell’s difficulties in walking, sitting and standing, but he specifically declined to offer any view about the prognosis for Mr Campbell’s knee pain.
The SSAT noted that Dr Kondeva reported that whilst Mr Campbell’s knee pain was likely to persist, he was uncertain about the extent to which it would impact on his functional abilities. The SSAT also noted that Dr Gazi had referred Mr Campbell to a specialist. The SSAT recorded Mr Campbell’s evidence that the specialist had informed him the knee pain was not due to a knee problem, but might be referred pain associated with sciatica, and had suggested review by a back specialist. The source of this information was, plainly enough, an August 2013 report of Dr Murray Hyde Page (the orthopaedic surgeon to whom Dr Gazi referred Mr Campbell). Dr Hyde Page’s report refers to Mr Campbell’s bilateral total knee replacements and notes that x-rays of the prostheses look “very good” without any suggestion of loosening or instability. Dr Hyde Page suggested that, with Campbell’s history of chronic back pain, his knee pain “could be referred pain from his lumbar spine”.
It is perhaps understandable that the SSAT concluded that the cause of Mr Campbell’s persisting knee pain had not been fully investigated and could not be taken into account in determining any impairment rating. That conclusion was clearly required by the evidence before the SSAT about the uncertain aetiology of Mr Campbell’s knee and back pain complaints. However, it is also the case that, by appearing to concentrate on those particular complaints, and outstanding investigations, the SSAT appears not to have taken into account the significance of Mr Campbell’s underlying arthritic condition.
In the present review proceedings, the Secretary accepts that Mr Campbell’s condition merits a five point impairment point rating (under the 2011 Impairment Determination “Table 3 – Lower Limb Function”). However, the Secretary contends that no higher point score rating could be allocated.
In support of that proposition the Secretary relies upon Dr Murray Hyde Page’s August 2013 report. Dr Hyde Page’s opinion was that Mr Campbell’s knee prostheses did not provide any reason for him to qualify for a disability support pension.
A 24 June 2013 Job Capacity Assessment (“JCA”) report accepted the osteoarthrosis / osteoarthritis diagnosis in Dr Kondeva’s 13 June 2013 report, regarded the condition as permanent, and also accepted Dr Kondeva’s report of Mr Campbell’s difficulties with standing, sitting, and sleeping. However the JCA report concluded that the condition could only be allocated a 5 point impairment rating.
In the Impairment Tables the italicised type describes a level of functional impact. The ordinary font text (typically numerically itemised) provides particular examples of abilities, symptoms or limitations. A person’s impairment’s functional impact is to be assessed “by reference to” those examples. In applying the Impairment Tables specific limitations apply. These include the propositions that
(i)the impairment must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: Rules 6(1) & 11(2)
(ii)only the specified rating values can be assigned: Rule 11(1)(b)
(iii)if a condition is straddles two impairment ratings, the higher rating can only be assigned if all of its descriptors are satisfied: Rule 11(1)(c)
(iv)in choosing between impairment ratings the relevant descriptors should be compared to determine which rating is to be applied: Rule 11(2).
The relevant Table for assessing the impairment resulting from Mr Campbell’s knee condition is “Table 3 – Lower Limb Function”. The relevant part of “Table 3 – Lower Limb Function” is set out below.
Points Descriptors 0 There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5 There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10 There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Mr Campbell’s own evidence (as recorded in the SSAT’s reasons for decision) was that he could walk about 150m comfortably, stand or sit for between 20 and 30 minutes, and drive a car for about an hour without needing to stop and stretch his legs. This appears to be consistent with the recorded basis of the 5 point impairment rating in the June 2013 JCA assessment report – that Mr Campbell had “some difficulty walking around a shopping mall or supermarket without a rest”.
These descriptions of Mr Campbell’s functional abilities are also consistent with Dr Gazi’s 6 August 2013 report. There Dr Gazi opined that Mr Campbell would have serious difficulty in negotiating a flight of stairs and in walking 400 metres. He would have moderate difficulty in entering or leaving, and in sitting or standing on, public transport. He would also have moderate difficulty in crossing streets and negotiating kerbs. Dr Gazi’s latter report, of 13 August 2013, described Mr Campbell as having reduced ability to walk, sit and bend, and as having pain associated with walking, sitting or standing for prolonged periods.
The preceding descriptions of Mr Campbell’s functional abilities, when applied to the descriptors in Table 3 in accordance with the Rules to which I have earlier referred, preclude the characterisation of Mr Campbell’s knee condition as “moderate”. He has only mild functional impairment as a result of the condition. The appropriate impairment rating is only 5 points.
LOWER BACK PAIN:
Dr Kondeva’s 13 June 2013 report described Mr Campbell as having low back pain, possibility associated with his knee prostheses and his difficulties in standing and sitting. Dr Gazi’s 13 August 2013 referred to a ladder fall in about 2008 and described
Mr Campbell’s current symptoms as reduced mobility, an inability to sit for long periods, and chronic lower back pain. Dr Gazi noted that Mr Campbell was not receiving any treatment and was unable to comment on Mr Campbell’s prognosis.The SSAT recorded Mr Campbell’s complaints of constant pain radiating across his buttocks, down the back of both legs and into his toes. The SSAT noted that Mr Campbell had seen an orthopaedic specialist about four or five years ago and those investigations at that time revealed, perhaps unsurprisingly in view of Mr Campbell’s age, some degree of disc degeneration. But the SSAT noted that Dr Kondeva had not mentioned back pain in his June 2013 report. It also noted that in his August 2013 report Dr Gazi had stated that he was unaware of any previous specialist assessment, could not comment on Mr Campbell’s prognosis, and that Mr Campbell was neither receiving, nor was planned to receive, any treatment. Mr Campbell told the SSAT that he took Panadol for his back pain, but was not taking any other medication or undergoing any other treatment.
I have referred above to Dr Hyde Page’s August 2013 recommendation that Mr Campbell consult a back specialist for further investigation of the knee pain that Dr Hyde Page thought might in fact be attributable to referred pain from the lumbar spine. No such investigation had been carried out (at least not up to the time of the SSAT’s decision in November 2013).
In these circumstances I am not satisfied that Mr Campbell’s lower back pain is attributable to a “permanent” condition. In the absence of that satisfaction it cannot be assigned an impairment rating.
DEPRESSION
In paragraph 8 above I alluded to the fact that both Drs Kondeva and Gazi, in their respective 2013 reports, described Mr Campbell’s depression as generally well managed (inferentially by antidepressant medication) and causing limited impact on his functional abilities. The SSAT reasons for decision record further information that Mr Campbell had been on antidepressant medication for many years. But the SSAT also noted that there was no evidence of any current diagnosis by an appropriate clinician. The SSAT regarded the interpretative rules that apply to “Table 5 – Mental Health Function”, as precluding an impairment rating unless the condition had been diagnosed “by an appropriately qualified medical practitioner”.
Mr Campbell disputes the SSAT’s decision on the basis that his depressive condition is long standing and was diagnosed many years ago. In that context he refers to the record of a mental health plan his then GP, Dr Kenny, prepared in early February 2008. That plan refers to depression and referral to a psychologist for treatment. But three aspects of the plan, and the referral, documents are particularly notable. First, there is no reference to Mr Campbell having any past history of depression. Second, although the depression described by Dr Kenny is recorded as relating to Mr Campbell’s niece, its onset is specifically described as recent and attributable to a family dispute 10 days earlier.
Third the psychologist referral is to a clinician named “Deborah”.
These aspects of Dr Kenny’s 2008 documents are notable because of the contents of another document relied on by Mr Campbell – an August 2009 pre-sentence psychiatric report by Dr Klaas Akkerman. Dr Akkerman was not one of Mr Campbell’s treating doctors. He met him only once, on 11 August 2009, the date of Dr Akkerman’s report.
Dr Akkerman records a history of depression. Mr Campbell told Dr Akkerman it dated back to 2004, and described it as being at its worst in about 2005/2006. Mr Campbell attributed his depression to problems related to his niece and her disrupted family situation. Dr Akkerman described Mr Campbell as having a depressed mood, but his actual diagnosis was that of adjustment disorder, and not depression.
Dr Kenny’s records, linking an isolated instance of depression to a particular incident in early 2008, are of no assistance in assessing Mr Campbell’s condition in 2013. Similarly, Dr Akkerman’s 2009 report, with the questionable accuracy of the history it records, and its specific diagnosis of adjustment disorder, is of no real assistance. It provides no basis for any confidence that Mr Campbell’s depressive condition can be properly be regarded as “permanent” and able to be assigned an impairment rating under the 2011 Impairment Determination.
Three months after the SSAT’s 29 November 2013 decision, and almost 9 months after he applied for disability support pension, Mr Campbell provided a 5 March 2014 report from Dr John Sjostedt, a general psychologist. Dr Sjostedt had one meeting with Mr Campbell. His report set out a very attenuated history. That history was flawed by the erroneous claim that Mr Campbell had previously been “awarded DSP for clinical “Depression and Anxiety”. Influenced by that error, Dr Sjostedt opined that Mr Campbell had suffered from clinical depression and anxiety for much longer than two years. He said Mr Campbell was severely clinically depressed and anxious. That depression and anxiety had been fully diagnosed and optimally treated, with antidepressant and
anti-anxiolytic medication for many more than two years, and were likely to persist for more than two years into the future. Despite that observation, Dr Sjostedt reported that his own assessment was that Mr Campbell was suffering from post-traumatic stress disorder, apparently attributable to his recent prison experiences.Careful reading of Dr Sjostedt’s very short, and factually flawed, report suggests that it also is of no real assistance in establishing Mr Campbell’s potential pension qualification. That suggestion is confirmed by a 10 June 2014 report from another clinical psychologist, Dr Memory Sendah. Dr Sendah had five sessions with Mr Campbell. His report contains a significantly more detailed history taking than was evident from Dr Sjostedt’s report. He disagreed with Dr Sjostedt’s diagnosis and considered there was “no evidence suggestive of a PTSD diagnosis”.
Dr Sendah appears to have shared Dr Sjostedt’s erroneous assumption that Mr Campbell’s previous DSP qualification was related to a history of clinical depression. (He referred to Mr Campbell having been “assessed in the past as being eligible for DSP” and opined that his current qualification would have to be based on “established medical and mental health issues decided in the past”.) The history he sets out includes the detail that Mr Campbell had been diagnosed with “severe depression” by a psychiatrist in Tuncurry and that the psychiatrist’s report had been submitted to a court. This detail appears to be a reference to Dr Akkerman and his 2009 report. So understood, the history is wrong. As I have indicated earlier, Dr Akkerman did not diagnose Mr Campbell as suffering from depression.
Dr Sendah noted that Mr Campbell’s focus during his various consultations was “on getting assessed for a psychological disorder and did demonstrate interest in clinical treatment issues”. He considered Mr Campbell met almost all of the diagnostic criteria for Severe Personality Disorder. However, and rather inconsistently with his criticism of Dr Sjostedt’s diagnosis, he concluded Mr Campbell was also suffering from PTSD – as well as bipolar disorder and depression. Dr Sendah ended his report with observations that Mr Campbell was a good candidate for various kinds of therapy – despite his apparent disinterest in clinical treatment. Dr Sendah’s assessment, not supported by any specific consideration of the Impairment Tables, was that Mr Campbell had a 20 point impairment rating for his various mental health problems.
The variations in the suggested clinical diagnosis of Mr Campbell’s psychological condition, and the inaccuracies in the history of the accounts of that condition, prompt the Secretary’s submissions. The Secretary’s ultimate submissions were that, based upon the available medical evidence, Mr Campbell’s mental health condition was not fully diagnosed, treated or stabilised any time relevant to the June 2013 application. This was because:
(a)Mr Campbell had differing diagnoses
(b)none of the diagnosed conditions could confidently be regarded as stabilised and permanent (because there was no persuasive evidence that significant improvement was unlikely to result if recommended treatments were undertaken)
(c)it was unclear whether Mr Campbell had undertaken any treatment at the time of his pension application.
The first of the Secretary’s submissions relies on the differences between the reports of Drs Sjostedt and Sendah, and the absence of any specific diagnosis by a psychiatrist or psychologist at the time of the June 2013 application. This submission is correct in that the Sjostedt and Sendah 2014 diagnoses (given the significant factual error in the history on which they are based) cannot be meaningfully informative of Mr Campbell's condition at the times relevant to the assessment of his application (broadly between June and early September 2013). The earlier reports of Drs Kondeva and Gazi, which record one of Mr Campbell’s conditions as “depression” cannot be relied on to demonstrate that his condition has been fully diagnosed. It seems tolerably clear that Drs Kondeva and Gazi regarded Mr Campbell’s “depression” as a complaint of minimal importance. And in the light of his November 2013 evidence to the SSAT, that his condition had not been assessed by either a psychiatrist or a psychologist, I consider that it had not been fully diagnosed. In this context it is appropriate to note the observations made by Senior Member Dunne and Professor Reilly AO in Yazdari v Secretary, Department of Social Services [2014] AATA 34.
[32]… the term “Depression” is sometimes used by doctors or other health professionals to refer to mood disorders like “major depressive disorder”. However, the term can also be used to describe a symptom, or set of symptoms, that may result from any one of a number of distinct disorders like major depressive disorder adjustment disorder with depressed mood or even PTSD It seems this is why some health professionals use the term “clinical depression” instead of “depression” and why psychiatrists and clinical psychologists often prefer to use diagnostic terminology from the DSM-IV-TR. It became clear that Mr Fallo accepted this point during his oral evidence when he clarified his earlier reference to the applicant being referred to him for treatment of his “depression” by agreeing that he meant “depression” (with a little “d”) as a symptom or set of symptoms rather than “Depression” (with a big “D”) as in a diagnosable depressive disorder for the purposes of the DSM-IV-TR.
In any event the Secretary’s second and third submissions are correct, and they preclude satisfaction that, at the time relevant to Mr Campbell’s pension application, his depression had been fully treated and stabilised. Mr Campbell was receiving no treatment, other than anti-depressant medication, at the time of his application. There is no evidence (despite Mr Campbell’s evidence of his treatment sessions with Dr Sendah in mid-2014) that during the period relevant to the assessment of his application, he undertook any other kinds of treatment– such as those suggested by Dr Sjostedt in
March 2014, and those recommended by Dr Sendah in June 2014. In those circumstances his condition cannot be regarded as “fully treated” and thus sufficiently “permanent” to be able to be assigned an impairment rating: Pelka v Secretary, Department of Social Services [2014] AATA 81 at [18]-[20]; and Yazdari v Secretary, Department of Social Services [2014] AATA 34 at [34].
Finally, the Secretary notes that in any event the only medical evidence of functional impact on Mr Campbell’s depression, around the time relevant to his June 2013 application, was in the reports by Dr Kondeva (13 June 2013) & Dr Gazi (13 August 2013). Both of those reports noted that Mr Campbell’s depressive condition was generally well managed and caused limited impact on his functional abilities. In addition, Dr Gazi reported on 6 August 2013 that Mr Campbell was fully able, apart from having some slight limitation in social interaction in relating to other people.
Consequently, even if I was satisfied that Mr Campbell’s depressive disorder was fully stabilised and treated, I would conclude that it did not merit a 20 point rating under the Impairment Tables. The relevant Table in the 2011 Impairment Determination is “Table 5 – Mental Health Function”. The relevant parts of the Table – dealing with “moderate” and “severe” functional impact – are set out below.
Points Descriptors 10 There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20 57. There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
There is no basis, having regard to the contents of the reports of Drs Kondeva and Gazi, to regard Mr Campbell as having a severe functional impairment as a result of his depressive condition.
The only evidence that is capable of suggesting a different view comes from the later reports of Drs Sjostedt, Sendah and Fong. Dr Sjostedt’s 5 March 2014 report does not address the Impairment Table descriptors and, consequently is merely a therapeutic recommendation for re-instatement of Mr Campbell’s disability support. Similarly,
Dr Sendah’s report, again without any explicit consideration of either the relevant Impairment Table descriptors or, indeed, without any clear discussion of Mr Campbell’s functional abilities, merely contains a subjective willingness to allocate a 20 point rating. Neither of these empathetic conclusions provides a basis for classifying Mr Campbell’s depressive condition as resulting in severe functional impairment.After November 2013, and probably in early January 2014, Mr Campbell consulted a new general practice and, in late February 2014, became a patient of Dr Alex Fong. Dr Fong provided certificates in which he opined first that “diabetic neuropathy of the lower limbs” (see his 21 March 20014 certificate) and then that “spinal stenosis at L4/L5” (see his 9 April 2014 certificate), were the conditions that had the most impact on
Mr Campbell’s ability to work or study. Dr Fong has consistently provided certificates of Mr Campbell’s continuing inability to work. But Dr Fong has never provided any information that would justify an impairment rating of 20 points for Mr Campbell’s depression – especially in the light of Dr Kondeva and Dr Gazi’s 2013 assessments that Mr Campbell’s depression caused only minor or limited impairments.
CONTINUING INABILITY TO WORK
Inability to work is an additional disability support pension qualification requirement:
see SSA 1991 s 94(1)(c)(i). That requirement applies even if a person has a 20 point impairment rating. Its practical content is that the person’s impairment is itself sufficient to prevent the person working (at ordinary rates of pay) for at least 15 hours per week within the next two years: see SSA 1991 94(2)(a) & (5).
In the present case there is no evidence that, in the relevant period, Mr Campbell was unable to work at least 15 hours per week within 2 years from the date of his claim. The 24 June 2013 JCA report noted that Mr Campbell had not worked since his discharge from the Army (in about 1984) and that, as a result of his limited skills, qualifications and employment history, he faced “complex non-vocational barriers to employment”. Nevertheless, the JCA report opined that Mr Campbell had a weekly baseline work capacity of 15 to 22 hours and, with appropriate intervention and assistance, a potential longer term capacity (within 2 years) of 23 to 29 hours per week.
Dr Sendah’s report of 10 June 2014 does contain the opinion that Mr Campbell was, at that time, in no state to do any work at all. However, Dr Sendah’s report also concludes with various treatment recommendations, and the observation that Mr Campbell is a “good candidate” for the proposed therapy and that the therapy sessions were to be conducted either on a monthly or fortnightly basis. In my view, Dr Sendah’s reports provide no proper basis for concluding that Mr Campbell, even assuming he could otherwise establish a 20 point impairment rating, had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC ........................................................................
Associate
Dated 19 November 2014
Date of hearing 14 October 2014 Applicant By telephone Solicitors for the Respondent Ms K Martini, Department of Human Services
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