Kellie MATTHEWS and Secretary, Department of Social Services
[2015] AATA 363
•27 May 2015
[2015] AATA 363
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5813
Re
Kellie MATTHEWS
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 27 May 2015 Place Melbourne The Tribunal affirms the reviewable decision.
[sgd]........................................................................
Member
SOCIAL SECURITY – disability support pension – heart condition – depression – impairment tables – impairment rating – full treated – fully stabilised – whether 20 impairment points – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 41 and s 42
Secondary Materials
Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
27 May 2015
INTRODUCTION
On 23 September 2013 Ms Matthews, the Applicant, submitted a claim for disability support pension (DSP) to Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. In her claim Ms Matthews recorded her disabilities as Extreme Panic Attacks & Anxiety, Social Phobia, Can’t go out of the house. Have Panic Attacks just going to supermarket.
On 11 December 2013 a Centrelink officer determined that Ms Matthews was not qualified for DSP. On 27 August 2014 the decision was affirmed by a Centrelink authorised review officer (ARO) who found that Ms Matthews’ total impairment rating did not meet the requirements of the Social Security Act 1991 (the Act). Ms Matthews sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT).
On 14 October 2014 the SSAT affirmed the ARO’s decision. This matter is a review of the SSAT decision.
HEARING
At the hearing Ms Matthews represented herself, and gave her evidence by telephone. Ms Mirna Pandurevic, a solicitor with the Department of Human Services, represented the Respondent, also by telephone.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I took in the Respondent’s Statement of Facts and Contentions dated 20 April 2015, together with the following supplementary T-documents:
·report of Dr Voltaire Nadurata, consultant cardiologist, dated 23 December 2014 (ST-1);
·report of Carole McGregor, clinical psychologist, dated 10 March 2015 (ST-1); and
·Program of Support for Ms Matthews (ST-2).
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work; ...
A person’s impairment is assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the qualification period is from 23 September 2013 to 23 December 2013.
ISSUES
The issues are whether, during the qualification period, Ms Matthews:
·had any physical, intellectual or psychiatric impairments; and, if so;
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·she had a continuing ability to work.
EVIDENCE
Ms Matthews gave her evidence under affirmation. She said that when she had a pacemaker fitted she thought she would feel better. However, she felt worse. She went back to the cardiologist who conducted more tests at The Royal Melbourne Hospital (RMH).
Ms Matthews said he is performing yet more tests, and this is making her depression worse. She does not talk to people about her depression. Her doctor referred her to a counsellor in Shepparton but she did not want to travel that far.
Under cross-examination Ms Matthews said her heart condition commenced in 2013 when she was working. She saw a doctor for a gastroscopy, however the doctor also conducted an echocardiogram (ECG) test which resulted in her being seen by a heart specialist and a pacemaker was inserted. She said the specialist told her she had a congenital heart disease.
Ms Matthews said the pacemaker was fitted in February 2013. She said initially it was all right but then it went downhill. She said that she could not breathe. She felt worse and it brought on her depression. She said she consulted a lung specialist twice in 2013.
Ms Matthews says she goes to the cardiologist every six months for the pacemaker to be reprogrammed. After one reprogramming she suffered a cardiac arrest. As a result, the pacemaker was reset to the original settings. Six months ago, at her last visit to the cardiologist, he told her she was as good as she was going to get.
When asked about her future treatment, Ms Matthews said she was to continue with her medication and have the pacemaker reprogrammed every six months.
In regard to her breathing difficulties, Ms Matthews said she had seen Dr Mark Harris in April 2013. He arranged a lung function test. She has not seen him since. She said she could not afford to see a lung specialist.
Ms Matthews said her sleep apnoea, indigestion and stomach problems had not been investigated. She spoke to her doctor two months ago about her stomach condition. He will refer her to another doctor for future tests at the local hospital. She takes some medication for her stomach.
When asked about her hypertension, Ms Matthews said that since her cardiac arrest further investigation of her hypertension has been put to one side until her heart has been dealt with.
Referring to her chest discomfort, Ms Matthews said that a nerve was cut during the installation of the pacemaker. Since then her arm has ached when she carries the groceries and washes her hair. The cardiologist does not intend to do anything about it.
Ms Pandurevic asked Ms Matthews about the effect of her heart condition on her day-to-day activities. Ms Matthews said she had no social life, she could not do the gardening, and she needed help in the house with vacuuming and hanging out the washing. She said that during the qualification period she could function more, she was more active, but still was depressed. She said that she could drive the car but sometimes became panicky. She had to leave her job, which also depressed her. She could walk around the supermarket but would get anxious as her breathing deteriorated. At that time she could do light duties around the house. She said it was worse now.
When asked when her depression commenced, Ms Matthews said it started about four months after her pacemaker was inserted, about June or July 2013. However, her previous history of depression began when her children were taken from her after she and her partner separated. It was then she started taking anti-depressant medications, which she still takes.
On an earlier occasion she saw a psychologist after suffering an assault. She saw him about eight to 12 times but it did not help her. She said seeing the psychologist was an unhappy experience and that is why she has not seen a psychologist since.
When asked about the effect of her depression during the qualification period Ms Matthews said she:
·felt hopeless and could not do anything;
·would not socialise and stayed at home;
·had no interest in the things she loved;
·lost concentration and did not read the newspapers; and
·was no longer motivated to listen to music.
Ms Matthews said her depression symptoms had changed massively since the qualifying period. She does not want to speak to anyone. She does not want visitors and she has panic attacks, worrying about stress and her heart. Ms Matthews said she would not see Ms McGregor, a clinical psychologist, again as she had not been sent a copy of her report.
SUBMISSIONS
In her submissions, Ms Pandurevic conceded that Ms Matthews suffers from depression and a heart condition and that she satisfies section 94(1)(a) of the Act. However, Ms Pandurevic contends that the conditions are not fully diagnosed, treated and stabilised.
Ms Pandurevic submits that, since the qualifying period, Ms Matthews’ heart condition has required more investigations, changes in medications and reprogramming of the pacemaker. She submits that the condition is fully diagnosed, but not fully treated or fully stabilised.
Ms Pandurevic contends further that Ms Matthews’ hypertension and breathing difficulties, which impact on her heart condition, have been left untreated even to the present date.
In regard to the depression, Ms Pandurevic accepts that the condition may be long-standing but during the qualifying period the condition was not diagnosed by a psychiatrist or a clinical psychologist. In addition, Ms McGregor reports that further treatments are being considered.
In response, Ms Matthews said that when she was not feeling well in 2013 she kept going back to the cardiologist for further investigation. She was depressed but did not tell the cardiologist. She did not know that she had to see a clinical psychologist.
TRIBUNAL CONSIDERATIONS
It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Ms Matthews had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·heart condition; and
·depression.
The concession is in accordance with the evidence and I find accordingly.
I must now determine whether Ms Matthews’ impairments attract an impairment rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
Section 6(5) of the Impairment Tables provides that, for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner, the following considerations apply:
(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 2 years.
I will consider each condition in turn.
Heart Condition
In his report dated 10 September 2013 (T-documents pages 85-92) Dr Basil Khan included in the one condition hypertension, pacemaker, depression, investigation for chest discomfort and GORD reflux disease. Depression is being considered as a separate condition. GORD reflux disease is not included in Ms Matthews’ claim and is not considered further in this matter. For the purposes of this decision I will consider the remaining conditions to be covered by the term Heart Condition.
I consider the following reports to be relevant to the diagnosis of Ms Matthews’ heart condition:
·Dr Nadurata, consultant cardiologist, dated 29 August 2013 (T-documents page82):
Kellie remains to be short of breath on exertion and just feeling very lethargic and lacks energy. It is hard to say as to what is the main cause of her symptoms …I am wondering whether this is just due to the pacing artefact but with those findings and her recurrent complaints, the findings are hard to ignore.
I have therefore offered Kellie an angiography which she has readily accepted. ...
·Dr Khan, dated 10 September 2013:
A Diagnosis
(1) Hypertension (2) Pacemaker (3) Depression (4) Investigated for chest discomfort (5) GORD reflux disease
…Further investigated by cardiologist.
B Current treatment
Pacemaker 26/02/2013; Coronary angiogram 18/09/2013; Medication.
…
E Future treatment
Coronary angiogram
…
G Clinical symptoms
Chest Discomfort
shortness of Breath
…
K Within the next 2 years the effect of this condition on the patient’s ability to function is expected to:
In the process of diagnosis
…
6 Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?
- Chest Discomfort;
- Hypertension;
- Pacemaker
...
Still in the process of diagnosis.
·Dr Nadurata, dated 24 March 2014:
A Diagnosis
Complete heart block;
Pacemaker induced LV systolic dysfunction
…
B Current treatment
Pacemaker implant 2013;
ongoing pacemaker reprogramming 2013
…
E Future/planned treatment
For admission to closely monitor and reprogram pacemaker programming.
·Exercise Stress Echo Report dated 14 May 2014 (T-documents page 115).
Although Ms Pandurevic conceded in her oral submissions that the heart condition was fully diagnosed, I am not convinced that the condition was fully diagnosed at the time of the qualification period. In his report dated 29 August 2013 Dr Nadurata was clearly still unsure of the cause of the condition. Dr Nadurata said ... It is hard to say what is the cause of her symptoms. In his report dated 10 September 2013, just before the qualification period, Dr Khan noted the diagnosis was being further investigated by cardiologist. Dr Khan recorded also chest discomfort – hypertension - pacemaker… in the process of diagnosis. It was not until his report of 24 March 2014 that Dr Nadurata recorded a clear diagnosis of a pacemaker induced left ventricular systolic dysfunction.
In considering whether her heart condition was fully treated during the qualification period, I note Ms Matthews’ statement dated 4 April 2014 (T-documents page 114). Ms Matthews states:
Just a follow up report on my condition. I was admitted to Bendigo Hospital on 25th March 2014.
During my stay there I had another problem with my Heart at aprox.3am [sic] one morning. [T]hen on the 28th I had another major one and all I remember is waking up in I.C.U..
In his report dated 23 December 2014 (ST-1) Dr Nadurata describes the incident as follows:
... We kept her [in] hospital to observe how her body would react by putting the pacemaker as only as a backup and letting her own rhythm go as usual. By doing so, her symptoms of shortness of breath has slowly improved. However, it took only two days before her heart became worse. Her symptoms of shortness of breath has improved, even though she was in high grade atrioventricular block but unfortunately, she went into ventricular tachycardia, requiring more aggressive treatment. ...
It is clear that in March 2014 Dr Nadurata was still conducting tests to observe how her body would react. I note also that Ms Matthews underwent an Exercise Stress Echo test on 14 May 2015 (T-documents page 115). This test investigated Ms Matthews’ heart function and is clearly related to her heart condition.
From the medical evidence I am satisfied that Ms Matthews was still undergoing investigation and treatment after the qualification period.
I am satisfied that during the qualification period Ms Matthews’ heart condition was neither fully diagnosed nor fully treated and I find accordingly. Consequently, the condition cannot be considered permanent in the terms of section 6(4) of the Impairment Tables and an impairment rating cannot be assigned to the condition.
Depression
Ms Pandurevic submitted that during the qualification period Ms Matthews’ depression was not diagnosed by a psychiatrist or clinical psychologist.
The Introduction to Impairment Table 5 − Mental Health Functions states:
The diagnosis of the condition 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).
Around the time of the qualification period diagnoses of depression were recorded by Dr Khan in his report dated 10 September 2013, and by Dr Nadurata in his report dated 24 March 2014. Neither doctor has qualifications in the area of mental health. The Impairment Table requires that diagnoses of mental health conditions be made with evidence from a psychiatrist or a clinical psychologist.
Ms Matthews gave evidence that she did not see a clinical psychologist before she saw Ms McGregor. According to Ms McGregor’s report, this occurred on 5 May 2015 (ST-3). It is clear that the diagnoses of Dr Khan and Dr Nadurata could not have been made with evidence from Ms McGregor. Indeed, there is no evidence that their diagnoses were made with evidence from any clinical psychologist or psychiatrist.
From the evidence I find that, during the qualification period, the condition of depression was not diagnosed within the provisions of the Impairment Table. Accordingly, Ms Matthews’ depression cannot be considered as fully diagnosed and as a result it cannot be assigned an impairment rating.
Total Impairment Rating
I have found that impairment ratings cannot be assigned to either the heart condition or the depression. As a result, the total impairment rating for Ms Matthews’ impairments is zero points.
CONCLUSION
The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied. Ms Matthews does not satisfy the requirements of section 94(1)(b) of the Act. As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).
The result is that during the qualification period Ms Matthews was not qualified for DSP and I find accordingly.
This finding relates to Ms Matthew’s condition at the end of 2013. If Ms Matthews feels that her conditions have changed since that time she is at liberty to submit a further application to Centrelink for DSP.
DECISION
I affirm the reviewable decision.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 27 May 2015
Date of hearing 1 May 2015 Applicant In person Advocate for the Respondent Mirna Pandurevic,
Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Benefits
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Medical Evidence
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Permanent Impairment
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