Keven Watts and Secretary, Department of Social Services
[2014] AATA 819
•31 October 2014
[2014] AATA 819
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2885
Re
Keven Watts
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 31 October 2014 Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
31 October 2014
INTRODUCTION
Mr Keven Watts is the applicant in these proceedings. He applied for disability support pension (“DSP”) on 4 July 2013. On 18 July 2013 the respondent decided to reject his claim. An Authorised Review Officer (“ARO”) affirmed that decision on
30 January 2014 as did the Social Security Appeals Tribunal (“SSAT”) on 1 May 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 4 June 2014.
It is not in dispute that the applicant suffers from a psychiatric condition, and diabetes, type 2. The Respondent contends that neither condition can be allocated an impairment rating.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:
·have a physical, intellectual or psychiatric impairment; and
·have an impairment of 20 points or more under the Impairment Tables;[1] and
·have a continuing inability to work.
[1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). In this case the relevant period is from 4 July 2013 and
3 October 2013.
There are rules for applying the Impairment Tables, contained in those Impairment Tables, in deciding if a person qualifies for DSP. The Impairment Tables are functional based, not based on the diagnosis. Ratings are assigned to reflect the level of functional impact from impairment of conditions that have been accepted to be permanent, and fully diagnosed, treated and stabilised.
A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.
A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:
·they have an inability to work for 15 hours or more a week due to their accepted impairments; and
·they have actively participated in a program of support.
This second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mr Watts’ conditions can be regarded as being permanent and the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[4]
[2] The Determination was made by the Minister pursuant to s 26(1) of the Act.
[3] Subsection 6(3) of the Determination.
[4] Subsection 6(4) of the Determination.
Mr Guthrie, for the respondent, accepts that Mr Watts suffers from the following conditions, and therefore satisfies section 94(1)(a) of the Act:
·Diabetes, type 2; and
·Memory impairment.
Mr Guthrie contends that the memory loss is not yet fully diagnosed, fully treated and fully stabilised, and therefore cannot be allocated a rating. In relation to diabetes, type 2, Mr Guthrie contends the condition causes no functional impact and therefore no impairment rating can be allocated.
The issues that I must determine are:
·Which, if any of Mr Watt’s conditions can be allocated an impairment rating; and
·If any can be rated, whether he has 20 impairment points or more; and if so
·whether he has a continuing inability to work.
CONSIDERATION
Does Mr Watts have any conditions that can be allocated a rating from the Impairment Tables?
Mr Watts gave evidence by telephone at the hearing. The information provided in this decision pertaining to his account of his medical conditions is that which he gave in oral evidence, unless otherwise specified.
Posttraumatic stress disorder/depression/memory loss
Mr Watts told me his memory problems are a result of mental trauma he suffered when he rented out rooms in his home. After he advertised the rooms for rent, he was contacted by the Government. He accepted the government’s offer, and rented rooms to occupants who had social problems, some were drug addicts, and others had spent time in gaol. In addition he rented rooms to other people who answered his advertisement in the newspaper.
Some of the people sent by the Government harassed him and made death threats. The police were called, however they told him he had put himself in this situation and had to deal with it. He was attacked with an iron bar at one stage. One of his tenants ended up in gaol. He suffered one problem after another. He was unable to remove the offending persons from his home as this was his only income.
He suffered depression as a result of these problems. He had a friend who was a school teacher. She diagnosed him with posttraumatic stress disorder (“PTSD”), secondary to the issues he had with tenants. He has lost his memory as a result of this condition. One day he found himself in his lounge room, unable to remember the name of his children and his then wife. When he is relaxed, his PTSD is much better.
He previously worked three to four nights a week as a sound technician; he reduced that to one night a month when the economic down turn hit. He is unable to work anymore due to his memory problem and due to his knee pain. He recently remarried, and has a
12 week old son. He spends his day caring for his child, and 40 year old wife who is not well. He is also attempting renovations around his house, he is making very slow progress, repairing the damaged caused by his previous tenants.
On cross examination, the applicant admitted he may have added the diagnosis of “POSTTRAUMATIC STRESS DISORDER” to the diagnosis of a medical report that accompanied an earlier claim for DSP. The addition was made after the medical report was completed by Dr O’Brien. He said he did this to bring it to the attention of the respondent.
In his report dated 18 June 2013, which accompanied the applicant’s claim for DSP, general practitioner Dr Whyte provided a diagnosis of “memory impairment”. Dr Whyte described the symptoms as non-specific memory impairment and repetitive/obsessive behaviours. He said the applicant was receiving no treatment, and opined the effect on his ability to function over the next two years was uncertain.
Mr Watts has been reviewed by both a neuropsychologist and a psychiatrist, for the purpose of determining why he has a problem with his memory. Neuropsychologist
Ms Gordon reviewed the applicant on 7 June 2010, and recommended further investigation to assist with diagnosis. She suggested an EEG (electroencephalogram), to see if there was any evidence of epilepsy. She considered the applicant should see a neurologist, as there are indications his condition could be Parkinson’s disease. Mr Watts was reviewed by psychiatrist Dr Petroff on 23 March 2011. In his report of the same date, Dr Petroff stated the applicant has memory problems, mixed anxiety and depression. Dr Petroff opined these problems were more in keeping with recent failures “over the past twelve months and possibly related to a more insidious organic process”. He recommended an MRI (magnetic resonance imaging) brain scan, CT (computerized tomography) scan, and drug screen.
Mr Watts had not undergone any of the investigations recommended by Dr Petroff and Ms Gordon. He said this is not because he is scared of MRIs, as he recently had an MRI on his knees, and also had one prior to recent dental work. He does not want to have an MRI on his brain, as he is sick of being a guinea pig and does not need to have it, as he knows he has PTSD.
Mr Watts’ memory impairment has not been treated, because the cause is unknown. Although he is certain that his memory loss is the result of PTSD, his diagnosis is not supported by anyone who is medically trained. Even if he is suffering from PTSD, he will not qualify for DSP until the condition is fully treated and fully stabilised. That would require him to trial medications and therapy. Until such time as the cause of his memory loss is investigated and fully diagnosed by a qualified medical practitioner, and the condition/s are identified as fully treated and fully stabilised, the degree of any permanent functional impairment associated with his memory loss cannot be determined, and a rating for the condition can not be allocated.
Diabetes, type 2
Mr Watts controls his diabetes with diet and oral medications. He checks his own blood sugar levels once a day, most days. He has a regular blood test every three months. He suffered a retinal detachment and is currently reviewed by the ophthalmologist every
12 months. He thinks this may have been caused by his diabetes.
Dr Whyte sated that blood tests confirmed the condition is controlled fairly well.
Mr Watts controls the condition by diet and medications. The medical evidence indicates he does not suffer from any functional impairment as a result of the condition, and although it is fully diagnosed, fully treated and fully stabilised, it does not attract an impairment rating.
Knee problems
Mr Watts developed a problem in his knees about 12 months ago; he thinks it is a cartilage problem. Pain in his knees was previously intermittent; currently it is constant.
There is no reference to Mr Watts’ knee problems in any of the medical reports before the Tribunal. I am not satisfied Mr Watts has a knee problem that has been fully diagnosed, fully treated and fully stabilised within the relevant period. No impairment points can be allocated for this condition.
CONCLUSION
Mr Watts cannot be allocated any impairment points for any of the medical conditions he claims impair his functional capacity. As he does not have a combined impairment rating of 20 or more points, he does not satisfy s 94(1) of the Act. I therefore do need to not consider whether he had a continuing inability to work.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty – seven) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ...............................[Sgd].........................................
Associate
Dated 31 October 2014
Date of hearing 24 September 2014 Applicant In person Advocate for the Respondent Joe Guthrie, Department of Human Services
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