John Chand and Secretary, Department of Social Security
[2014] AATA 116
•5 March 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/2743
General Administrative Division )
Re: John Chand
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Senior Member J Toohey
DATE: 16 April 2014
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
a)Where at paragraph 33 the decision reads “20 June 2014”, the decision shall now read “20 June 2012”.
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Senior Member J TooheyAdministrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/2743
General Administrative Division )
Re: John Chand
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Senior Member J Toohey
DATE: 4 April 2014
PLACE: SydneyThe Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
a)Where at above the heading to paragraph one the decision reads “4 March 2013”, the decision shall now read “5 March 2014”.
b)Where at paragraph 11(iv) the decision reads “25 September 2013”, the decision shall now read “30 September 2013”.
c)Where at paragraph 11(vi) the decision reads “”20 May 2013”, the decision shall now read “30 May 2013”.
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Senior Member J Toohey
[2014] AATA 116
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2743
Re
John Chand
APPLICANT
And
Secretary, Department of Social Security
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 5 March 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
Catchwords
SOCIAL SECURITY – disability support pension – anxiety and depression – post traumatic stress disorder – hypertension – musculoskeletal conditions – high cholesterol – whether applicant’s conditions fully diagnosed, treated and stabilised – program of support – decision under review affirmed
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
4 March 2013
Background
Mr John Chand suffers from pain in his left wrist, lower back and right hip, hypertension, depression and anxiety (also diagnosed as post-traumatic stress disorder), and high cholesterol. He seeks review of a decision to refuse his application for disability support pension (DSP).
Mr Chand applied for DSP on 20 June 2012. For his application to succeed, he had to qualify for DSP on that date or within 13 weeks, that is by 19 September 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will refer to this period as “the relevant period”.
To qualify for DSP during the relevant period, Mr Chand had to satisfy the following criteria in s 94 of the Social Security Act1991 (the Act):
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
The first question, therefore, is whether Mr Chand’s conditions rated 20 or more points on the Impairment Tables during the period 20 June to 19 September 2012. If not, then his application cannot succeed.
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.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
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 two 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 two 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.
Reasonable treatment means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Evidence about MR CHAND’S medical conditions
The medical evidence concerning Mr Chand’s medical conditions comprises:
(i)report of a bone scan on 2 April 2009 by Dr Ernest Crocker;
(ii)reports from his general practitioner, Dr R M Witkowski, dated 8 February 2012, 10 September 2012, 30 November 2012, 7 March 2013 and 26 July 2013;
(iii)report of an ultrasound by Dr Liu on 15 February 2013;
(iv)an admission note from Bankstown Hospital dated 3 April 2013 prior to Mr Chand undergoing a colonoscopy, and a report of the colonoscopy on 25 September 2013;
(v)a mental health assessment on 6 April 2013 by Dr Edward Howe, general practitioner;
(vi)reports dated 11 April 2013 and 20 May 2013 from Helen Plant, psychologist;
(vii)letter dated 25 May 2013 from Dr Sydney Oen, psychiatrist;
(viii)letter from Concord Hospital confirming Mr Chand’s appointment with the Sleep Studies Unit on 21 June 2013;
(ix)a list of Mr Chand’s medications;
(x)a report of an MRI of his left wrist on 14 February 2014.
Centrelink has provided reports of Job Capacity Assessments on 15 September 2010, 14 February 2012 and 25 September 2012.
Some of the medical reports and Job Capacity Assessments pre-date Mr Chand’s application for DSP but they provide some relevant background information about his conditions.
In his claim for DSP, Mr Chand listed his conditions as shortness of breath, depression and pain in his left wrist. Dr Witkowski’s supporting report of 10 September 2012 referred only to his psychological condition.
When she assessed him on 25 September 2012, the Job Capacity Assessor also considered Mr Chand’s pain in his lower back and right hip, hypertension, and high cholesterol, some of which were referred to in the earlier medical reports and some of which it appears Mr Chand told her about during her assessment.
I will deal with Mr Chand’s medical conditions in turn.
Depression and anxiety (also diagnosed as post-traumatic stress disorder)
Dr Witkowski has been Mr Chand’s general practitioner since October 1998. In his report dated 8 February 2012, he referred to Mr Chand’s “anxiety – depression reaction” which he described as temporary, and with the date of onset of 7 February 2012. He listed treatment as psychotherapy and antidepressants.
In his report on 10 September 2012, Dr Witkowski referred to the same condition and to Mr Chand’s history of “endogenous depression with anxiety/panic attacks” aggravated previously by work conditions. He described Mr Chand’s current treatment as psychotherapy and future treatment as “Above and [consult] clinical psychologist”. He stated that he expected Mr Chand’s condition to persist for more than 24 months and to fluctuate.
On 7 March 2013, Dr Witkowski provided Mr Chand with a letter addressed “To whom it may concern”, certifying that he was unfit for any type of remunerative work due to shortness of breath and severe anxiety–depression reaction “refractory [query] to management/treatment”. Dr Witkowski wrote the prognosis was “extremely poor”. In a further certificate dated 26 July 2013, he certified Mr Chand “totally and permanently unable to perform any of the duties he was performing previously ie the duties for which he was trained”, due to his psychological conditions.
In July 2012, Mr Chand saw Dr Sydney Oen, psychiatrist. Unfortunately, Mr Chand was unable to afford further treatment until some time later, when he was advised that he was eligible for a number of sessions funded by Medicare. Mr Chand told the Tribunal that, had he been able to afford it, he would have continued seeing Dr Oen. As it was, he started seeing Helen Plant, psychologist, on 11 April 2013. By the time of the Tribunal hearing he had seen Ms Plant approximately 11 times and had one session remaining.
On 30 May 2013, Ms Plant reported to Dr Witkowski that, in her opinion, Mr Chand was suffering from post-traumatic stress disorder. Mr Chand told the Tribunal that, although he cannot change the events in the past that have led to his depression and anxiety, it has been helpful to see Ms Plant.
Mr Chand did not start seeing anyone regularly for treatment until he started seeing Ms Plant in April 2013, well after the relevant period. I understand that his financial position prevented him seeing anyone sooner (other than Dr Oen once) but, unfortunately, I cannot be satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period. As a result, it cannot be given an impairment rating.
Left wrist, lower back and right hip
Mr Chand injured his left hand, lower back and right hip in a fall on his way to work in 2008.
The bone scan by Dr Crocker in April 2009 showed “evidence of low-grade trochanteric bursitis, a little more marked on the right side. Diffuse synovitis throughout the left elbow joint but no focal abnormality.”
In September 2010 (before his claim for DSP), the Job Capacity Assessor noted that Mr Chand had “lower limb deficiencies”; Mr Chand reported he had had an x-ray and was currently taking Mobic and Panadol for his chronic hip pain; he had had eight sessions of physiotherapy and four of hydrotherapy in 2009; he was awaiting further assessment and treatment.
As I have noted above, Dr Witkowski did not refer to these physical conditions in his reports and he was not available at the hearing to give evidence. I therefore adjourned the hearing so that I could hear from Dr Witkowski by telephone.
At the resumed hearing, Dr Witkowski gave evidence that he referred only to Mr Chand’s psychological condition on his medical reports because that was the overwhelming problem at the time. In particular, the loss of his job in about February 2012 was causing Mr Chand to be depressed, and he was suffering from respiratory and sleep problems as well. However, he said, Mr Chand had complained of pain, mainly in his left elbow and right hip, since his accident in 2008, and left wrist pain for some years; his note showed Mr Chand had it x-rayed in 2007, indicating it was giving him problems back then.
Dr Witkowski said that, during the relevant period, Mr Chand’s left wrist was “problematic” but “not to the point of doing anything spectacular”. An x-ray in February 2012 did not show anything “spectacular” by which I understand Dr Witkowski to mean he did not think it warranted treatment beyond the anti-inflammatory medication Mr Chand was taking. It only “came to the fore” in recent months when Mr Chand’s left wrist pain had increased over time to the point where he referred him to Mr Richards, a rheumatologist, in late 2013.
In relation to Mr Chand’s right elbow during the relevant period, Dr Witkowski said that manual tasks made it worse but, if he rested it, it would be “a bit better”. In relation to Mr Chand’s lower back and hip, Dr Witkowski said he has been getting discomfort “for ages” and been taking anti-inflammatory medication. He saw Dr Trevett, orthopaedic surgeon, in February 2009 and had a bone scan in April 2009.
Mr Chand is left-handed. He has difficulty writing for any length of time and difficulty lifting and holding objects. I asked Dr Witkowski how he would rate Mr Chand’s impairment on a scale of mild, moderate, severe or extreme during the relevant period. He said it was hard to say but he thought Mr Chand was “about half-way there”. He agreed that it was fair to say it was “moderate” then but it is “bad” now.
I accept Mr Chand has continuing pain in his left wrist, right elbow, back and hip. However, he was not referred for any further investigation of his lower back and hip and the only treatment he had during the relevant period was anti-inflammatory medication. He was not referred to a specialist for his wrist until late 2013. On the information before me, I am not satisfied that these conditions were fully diagnosed, treated and stabilised during the relevant period.
Hypertension, high cholesterol and thyroid condition
Mr Chand takes Tritace for his hypertension and Lipitor to lower his cholesterol. There is limited information about these conditions before me but even allowing they were fully diagnosed, treated and stabilised during the relevant period, there is nothing to suggest that either affects Mr Chand’s ability to function.
Conclusion
As Mr Chand’s conditions were either not fully diagnosed, treated and stabilised during the relevant period, or had minimal, if any, effect on his ability to function during that period, they did not rate 20 or more points on the Impairment Tables. His claim for DSP on 20 June 2014 cannot succeed because he did not qualify at that time.
Because Mr Chand’s impairments do not rate 20 or more points on the Impairment Tables, it is not necessary for me to consider whether he also had a continuing inability to work.
As Mr Chand’s condition overall is evidently becoming worse, it may be in his interests to test his eligibility for DSP again.
I affirm the decision under review.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ................................................
Associate
Dated
Date(s) of hearing 25 November 2013 and 3 March 2014 Applicant In person Advocate for the Respondent Ms K Martini, Department of Social Security
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