Leslie WARREN and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 364

[2013] AATA 364

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1205
Re	Leslie WARREN
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander
Date	31 May 2013
Place	Sydney

Decision Summary

The Decision under review is affirmed.

........................................................................

Dr Ion Alexander

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Impairment Table – Rating under Impairment Table – Continuing inability to work – Sufficient impairment – Impairment rating of 20 points or greater – Permanent, treated and stabilized – The decision under review is affirmed.

LEGISLATION

Social Security Act 1991 (Cth) secs 94(1)(a); 94(1)(b)

REASONS FOR DECISION

Dr Ion Alexander

31 May 2013

1. On 1 March 2011 Mr Warren lodged an application for Disability Support Pension (DSP) in which he claimed that he suffered from various medical conditions including: diabetes; depression; and, high blood pressure.

2. His application was rejected by Centrelink and subsequently the Social Security Appeals Tribunal (SSAT) and he now seeks review of that decision.

3. The Respondent contends that Mr Warren did not satisfy the requirements of section 94(1) of the Social Security Act 1991 (the Act) during the 13 week assessment period. In particular he did not satisfy section 94(1)(b) in that his rating under the Impairment Tables was less than 20 points and alternatively, section 94(1)(c), in that he did not have a continuing inability to work.

4. At the hearing Mr Warren was unrepresented but gave oral evidence.

   ISSUES

5. As there is no dispute that Mr Warren satisfied section 94(1)(a) the relevant issues for consideration are:

   (a) What was  Mr Warren’s rating under the Impairment Tables? [s94(1)(b)]

   (b) Did Mr Warren have a continuing inability to work? [(s94(1)(c)]

   What Mr Warren’s rating under the Impairment Tables?

   Mr Warren’s evidence

6. Mr Warren explained that that he had worked for Telstra for 34 years until he was made redundant in 2003. He had started in the mail room and prior to his redundancy he was the State Manager for Disability Services a position he had held for several years.

7. Soon after he had been made redundant he was diagnosed as suffering from diabetes mellitus. The diagnosis was made after a minor motor vehicle accident where he had suffered a “blackout”. When admitted to hospital he was found to have had a high blood sugar level indicative of diabetes.

8. Initially he was treated with oral medication but within a few months his condition was such that injections with insulin were required.

9. He has remained on a combination of oral medication and injected insulin since that time. Currently he gives himself two insulin injections in the morning and two in the evening and said that he is very experienced with his injections which are usually completed in about five minutes. He explained that he tests his blood sugar levels two to three times per week and that the levels tend to be high. He added that he was unable to recall ever having a hypoglycaemic episode.

10. Apart from some mild “dizziness” after giving himself injections, discomfort in his fingers with blood sugar testing and regular medical review, Mr Warren agreed that during the assessment period he did not have any significant problems with respect to his diabetes.  More recently he had a third nerve palsy in his right eye which has now resolved and an ulcer on one of his feet which is currently still present.

11. With respect to his blood pressure Mr Warren explained that he had been treated for hypertension for more than twenty years and apart from intermittent changes in medication his condition has been relatively stable and not caused any functional impairment.

12. Mr Warren’s evidence in respect of his mental health issues was limited because of difficulty with recollection. He explained that his mental health issues first started during his adolescence because of difficulties with a particular family member but he did not mention anything about any intervention or treatment.

13. In 1994 Mr Warren suffered a “breakdown” after being assaulted at work by a customer and required psychiatric treatment which included anti-depressive medication (Zoloft).

14. Mr Warren recalled that admission to hospital for “shock treatment” had been considered but was not pursued. He continued on Zoloft for about two years and was graded back to full-time work over about ten months.

15. Mr Warren appeared to make a full recovery but stated that he found his last four years at work as Disability Manager quite stressful. He described working alone and having to visit and assist significantly disabled customers who were often living in difficult domestic circumstances. Nevertheless he did describe his job as excellent and quite interesting.

16. After being made redundant Mr Warren was unable to find suitable employment and concentrated on household domestic duties as well as assisting in the care of his two grandsons.

17. In January 2011 Mr Warren decided to leave home and live on his own in another house owned by the family. He described being “fed up” with his domestic responsibilities and feeling depressed because of frequent arguments at home.

18. Mr Warren also described becoming so “upset” about something he saw on TV concerning child abuse that he felt he could not cope. As a result he saw his General Practitioner (GP) who referred him to a psychologist for counselling which commenced on 15 March 2011.

19. Mr Warren stated that he saw the psychologist about every two to three weeks and that initially treatment consisted of discussion and counselling and no medication because the psychologist felt he was already on too much other medication. However, about three months later Mr Warren was started on low dose antidepressant medication (Avanza) by his GP. Mr Warren currently continues on this medication.

20. Mr Warren is also being treated for elevated cholesterol and suffers from obesity.

21. In his evidence Mr Warren agreed that during the assessment period these conditions had not caused him any significant functional impairment.

    Medical Evidence

22. At the time of his application for DSP Mr Warren relied on a report provided by his GP, Dr Hanna, dated 25 February 2011.

23. Dr Hanna lists depression and diabetes as medical conditions which have a significant impact on Mr Warren’s ability to function.

24. Dr Hanna provides little useful information in respect of the clinical features or treatment of the listed conditions and no information in respect how these conditions impact on Mr Warren’s ability to function.

25. Dr Hanna also lists dyslipidaemia, hypertension and obesity as medical conditions that are generally well managed and that cause minimal or limited impact on his ability to function with no additional useful information.

26. A report by Dr Hanna dated 16 June 2011 is not only outside the assessment period but also provides no additional useful information.

27. In a brief report dated 19 May 2011, Mr Mattar, Consulting Psychologist, confirms that Mr Warren was referred for assessment and treatment of a psychological condition.

28. Mr Mattar states that Mr Warren “is suffering from stress, anxiety-depressive disorder,         pain and adjustment disorder” and that he is receiving psychological treatment.

29. In my view Mr Mattar does not provide a meaningful explanation to support his diagnosis and does not make any useful assessment of the impact of the diagnosis on Mr Warren’s ability to function.

30. Mr Mattar states that Mr Warren’s condition has been treated and stabilised but provides no explanation to support his conclusion and does not consider the potential benefits of additional treatment such as antidepressant medication.

31. A letter dated 23 November 2012 from Dr Wong, Endocrinologist, provides a brief assessment of Mr Warren’s status in respect of his diabetes as at November and does not assist with the issues before the Tribunal.

    Consideration

32. Mr Warren claims that he suffers several medical conditions which have caused sufficient impairment so that he is entitled to receive DSP.

33. In order to succeed in his claim Mr Warren’s impairment rating under the Impairment Tables in Schedule 1B of the Act must be 20 points or greater.

34. The introduction to the Impairment Tables stipulates that for an impairment rating to be assigned to a medical condition the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

35. It is clear from the evidence before the Tribunal that Mr Warren has suffered from diabetes and hypertension for many years and that both conditions are permanent, treated and stabilised.

36. Mr Warren’s own evidence and the limited medical information before the Tribunal lead to a conclusion that both these conditions are adequately controlled and have minimal impact on his ability to function.

37. It follows that the rating for both these conditions under the Impairment Rating is nil.

38. In respect of the conditions of dyslipidaemia and obesity there is no evidence before the Tribunal that these conditions have any impact on Mr Warren’s capacity to function and would also attract an impairment rating of nil.

39. The issue of Mr Warren’s mental health issues or “depression” are more problematic.

40. It is clear that Mr Warren has a past history of mental health issues, however, from his own evidence his recent symptoms seem to have arisen in early 2011 on or about the time he left home and were exacerbated by an ill-defined intervening event.

41. I am not satisfied that the medical evidence before the Tribunal establishes that Mr Warren’s psychological condition was fully documented, investigated, treated and stabilised at the time of his application or in the subsequent 13 weeks i.e. between 1 March 2001 and 31 May 2011.

42. Mr Warren’s treatment with the psychologist did not start until  the 15 March 2011 about two weeks after he had applied for DSP and he did not start on any antidepressant medication until about June 2011.

43. Furthermore the somewhat brief report provided by the psychologist did not, in my view, provide an adequate explanation as to the nature or severity of Mr Warren’s psychological condition and made no meaningful reference to any progress with treatment.

44. For the above reasons I find that I am unable to assign an impairment rating to Mr Warren’s claimed condition of “depression”.

45. Therefore, during the 13 week assessment period Mr Warren’s rating under the Impairment Tables was nil which means he did not satisfy section 94(1)(b) of the Act and was not entitled to DSP.

46. It follows that it is not necessary to consider the second issue of “continuing inability to work”.

    Decision

47. The Decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

...............[sgd].....................................................

Associate

Dated 31 May 2013

Date of hearing	16 May 2013
Applicant	In person
Advocate for the Respondent	Cameron Hutchins
Solicitors for the Respondent	Department of Humans Services