Jonothan Cooper and Secretary, Department of Social Services
[2013] AATA 749
[2013] AATA 749
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2000
Re
Jonothan Cooper
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 21 October 2013 Place Hobart The applicant’s condition of mitral valve prolapse attracts 10 points under Table 1 of the Impairment Tables. In all other respects the decision under review is affirmed.
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Deputy President
SOCIAL SECURITY – disability support pension – mitral valve prolapse – stress/anxiety/depression – whether applicant’s medical conditions are “fully diagnosed, treated and stabilised” – whether the conditions attract 20 points under the Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed
Social Security Act 1991, s 94
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
21 October 2013
REASONS FOR DECISION
Mr Cooper claimed disability support pension (DSP) on 21 December 2012. His claim was unsuccessful. He then asked for a review by an authorised review officer. That officer affirmed the earlier decision. Mr Cooper then appealed unsuccessfully to the Social Security Appeals Tribunal (“SSAT”). He now seeks a review by this Tribunal of the SSAT decision of 11 April 2013.
At the hearing before this Tribunal Mr Cooper acknowledged that the evidence he was able to present in support of his claim would probably be insufficient to establish, at the relevant time, his eligibility for the DSP. When giving oral evidence he expressed his concern that Centrelink had not informed him at an earlier time of the need for evidence from a psychologist to support his general practitioner’s diagnosis of a mental health condition. Mr Cooper was also concerned that, in his view, his honesty and integrity had been questioned by those who had assessed his DSP claim.
The Tribunal found Mr Cooper to be a reliable witness who gave frank and honest explanations of his health problems and of the functional impact they have had on his day-to-day activities.
THE LEGISLATION
To qualify for the DSP a person must have an impairment rating of at least 20 points under the Impairment Tables (see section 94(1) of the Social Security Act 1991 (“the Act”) and the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”)).
A person’s medical condition can only be assigned an impairment rating if the condition causing the impairment is “permanent” in that it is more likely than not to persist for a period of two years. (See part 2 clause (6)(3) of the Impairment Tables)
A condition is considered permanent if it has been “fully diagnosed” by an appropriately qualified medical practitioner and is “fully treated” and “fully stabilised” (part 2 clause 6 (4) of the Impairment Tables)
In addition to meeting the minimum 20 points impairment rating the tribunal must also be satisfied that Mr Cooper has a “continuing inability to work” as a result of the impairment. (See section 94(1) (2) and (3) of the Act.)
THE ISSUES
The principal issues to be determined by the tribunal are:
(a) Are Mr Cooper’s medical conditions “fully diagnosed”, “fully treated” and “fully stabilised?”
(b) Do the conditions attract at least 20 points under the Impairment Tables?
(c) If the answers to (a) and (b) are “yes” then does Mr Cooper have a “continuing inability to work” as a result of the impairment?
MR COOPER’S MEDICAL CONDITIONS
It is contended by the applicant that he suffers from two medical conditions. They are mitral valve prolapse and a condition described as “stress/anxiety/depression”. (see T4 page 47)
Mitral Valve Prolapse
The respondent does not dispute that Mr Cooper suffers from this condition and that it is “fully diagnosed”, “fully treated” and “fully stabilised”. It is conceded on behalf of the respondent that the condition attracts 5 points under the Impairment Tables. The Job Capacity Assessment Report of 14 July 2013 (T5) concludes that 5 points is the appropriate rating under Impairment Table 1. This was also the view of the SSAT. (See paragraph 18 of the SSAT decision)
The evidence establishes to the Tribunal’s satisfaction that Mr Cooper does frequently suffer significant breathing problems which causes him difficulty in day to day activities including when walking and doing his household chores. For example, on the day of the hearing he walked from his home in West Hobart to the hearing held at the Federal Court building in Davey Street Hobart. This is a distance of some kilometres. During this walk he had to frequently stop to catch his breath. The Tribunal is satisfied, in particular, that his significant breathing problems have caused Mr Cooper difficulty in performing day-to-day household duties including washing dishes and doing his laundry.
The Tribunal concludes that Mr Cooper suffers a moderate functional impact from this condition and that the impact is sufficient to attract 10 points under Table 1 of the Impairment Tables.
Stress/Anxiety/Depression.
Dr McCoid states (T4 page 47) that Mr Cooper was diagnosed as suffering “stress/anxiety/depression” from 2007. He describes the diagnosis as “presumptive”. The “current treatment” is said to be limited to taking “Zoloft (antidepressant)”. Past treatment is described as “intermittent” “counselling” and taking “medication (Zoloft)” for “4 years”.
Dr McCoid confirmed in his report that Mr Cooper had not been referred by him or by another doctor in his practice to any medical specialist.
Mr Cooper confirmed in his oral evidence that he has had two recent consultations with a psychologist Mr Glyn Spalding. The consultations were arranged following recent advice from a Centrelink Customer Relations Officer that Mr Cooper needed to see a psychologist for the purpose of pursuing his DSP claim.
There is no specialist medical evidence before the Tribunal sufficient to satisfy it that Mr Cooper has undertaken reasonable treatment for this condition and that any further reasonable treatment is unlikely to result in functional improvement.
The Guidelines to the Tables for the Assessment of Work Related Impairment for Disability Support Pension relating to “Mental Health Function” provide at page 35 as follows:
“The diagnosis of the condition must be made by an appropriately qualified medical practitioner. This includes a general practitioner or a psychiatrist. Where the appropriately qualified medical practitioner is not a psychiatrist, the diagnosis must be made by a general practitioner with evidence from a clinical psychologist”.
Supporting evidence for the DSP claim can include professional or clinical reports but can also include advice from the general practitioner that the person has been seen by a clinical psychologist or a psychiatrist who made or confirmed the diagnosis or provided evidence in support of the diagnosis. This advice can be either in writing in the Medical Report or other document, or verbally to the Assessor. Verbal confirmation must be documented and added to the person’s Medical Information File”.
In this application there is no evidence that the GP’s “presumptive” diagnosis of “stress/anxiety/depression” has been confirmed by a psychiatrist or by a clinical psychologist.
The Tribunal is not satisfied on the evidence that the condition of “stress/anxiety/depression” has been either “fully diagnosed” or “fully treated”. It therefore cannot be assigned an impairment rating under the Impairment Tables.
CONCLUSION
Mr Cooper’s medical conditions attract a total impairment rating of 10 points. They do not attract an impairment rating of at least 20 points as required by the Act. Mr Cooper was therefore not eligible, at the relevant time, to receive the disability support pension.
DECISION
The applicant’s condition of mitral valve prolapse attracts 10 points under Table 1 of the Impairment Tables. In all other respects the decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)
[Sgd]
Administrative Assistant
Dated : 21 October 2013
Date(s) of hearing 29 August 2013 Applicant In person Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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