LOUIE PETSIOS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 707

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 707

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1090

GENERAL ADMINISTRATIVE DIVISION		)
Re		LOUIE PETSIOS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date3 September 2009

PlaceAdelaide

Decision For reasons given orally at the hearing, the tribunal affirms the decision under review.

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

Deputy President

CATCHWORDS

SOCIAL SECURITY - Disability support pension - inability to work - psychological conditions - chronic recurrent prostatitis - reflux oesophagitis/gastritis and biliary colic - Schedule 1B Impairment Tables – further treatment or assessment planned after 13-week assessment period – Impairment Tables only require condition to be treated, not fully treated - decision under review affirmed.

Social Security Act 1991 (Cth), s 94 and Schedule 1B

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR ORAL DECISION

3 September 2009   Deputy President D G Jarvis

1.      The following is an edited version of the reasons I gave orally for my decision.  I have now supplemented those oral reasons by referring in greater detail to certain background facts, which were not in contention, and by referring in greater detail to the relevant provisions of the applicable legislation.

2.      On 18 August 2008 the applicant, Louie Petsios, lodged an application for a disability support pension (DSP) pursuant to the Social Security Act 1991 (Cth) (the Act). The application was supported by a treating doctor’s report dated 1 August 2008 prepared by Mr Petsios’s general practitioner, Dr G Neroni. This report referred to diagnoses of post-traumatic stress disorder (PTSD) resulting from Mr Petsios’s involvement in a motor vehicle accident in 1991 in which his friend died, chronic prostatitis which he had had at that time for a period of one and half years, and oesophageal reflux disorder for which he was taking Somac medication.

3.      An officer of Centrelink decided to reject Mr Petsios’s claim, and that decision was later affirmed by an Authorised Review Officer and later still by the Social Security Appeals Tribunal (SSAT).

4.      Mr Petsios then applied to this tribunal for review of the decision of the SSAT.

Issues before the Tribunal

5.      The issues before the tribunal are:

(a)whether Mr Petsios’s PTSD (and certain other psychological conditions to which I will refer) and his prostatitis were fully documented, diagnosed conditions which had been investigated, treated and stabilised;

(b)whether the oesophageal reflux disorder attracted any impairment points under the Impairment Tables in Schedule 1B to the Act; and

(c)whether Mr Petsios had the capacity to undertake work of at least 15 hours a week within 24 months from the date of lodgement of his claim for DSP.

Legislation

6. Section 94 of the Act provides for the qualification for DSP. It provides relevantly:

“94(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 …”.

7. The section includes certain other qualifications, which Mr Petsios fulfils. The Impairment Tables referred to in s 94(1)(b) are the tables contained in Schedule 1B to the Act.

8. Section 94(2) provides that the Secretary must be satisfied of certain matters in order for a person to have a continuing inability to work because of an impairment. The section provides as follows:

“94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)       the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:    For work see subsection (5).”

9. The expression “training activity” in s 94(2) is defined in s 94(5) to mean one or more of certain activities, including education, vocational training, vocational rehabilitation and work-related training (including on-the-job training).

10.     The word “work” is defined to mean work:

“(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.”

11. The Impairment Tables, which are provided for in Schedule 1B, are prefaced by an Introduction which contains certain explanations and conditions. The conditions relevant to Mr Petsios’s claim are as follows.

(a)Ratings can only be assigned under the tables for conditions where there is an associated current loss of function of where prolonged loss of function would be expected in most work situations: paragraph 3 of the Introduction.

(b)For a rating to be assigned, the condition must be a “fully documented, diagnosed condition which has been investigated, treated and stabilised”: paragraph 4.

(c)The condition must be considered to be permanent; that is, once a condition has been “diagnosed, treated and stabilised” it is accepted as being permanent if it is more likely than not that it will last for more than two years.  A condition is considered “fully stabilised” if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years: paragraph 5.

12.     Paragraph 6 of the Introduction then provides:

“In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.”

13.     This paragraph then goes on to explain the concept of “reasonable treatment”, and this is to be assessed on the assumption that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side-effects that are unacceptable to the person.

14. The qualification for DSP is to be determined as at the day on which the claim is made, and within a period of 13 weeks after that day (clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 (Cth)).

Background Facts

15.     The following background facts are based on the evidence of Mr Petsios, his wife, who was able to clarify some aspects of his evidence, and the documentary evidence before me.

16.     Mr Petsios is aged 39.  When he left school at the age of 18, he helped his father in a market garden.  After that, for about 12 years, he ran a taxi truck business, which he had taken over from his brother.

17.     In 1991 he was involved in a motor vehicle accident.  A close friend who was a passenger in the car died as a result of the accident.  Mr Petsios was not seriously injured, but the accident affected him greatly.  He became withdrawn, lacked motivation and was not able to return to work for a year or so.  He had problems with sleep, always felt tired and had very bad depression.  He had low self-esteem and was easily upset over work issues, and felt unable to manage life.

18.     After about four years he went to a general practitioner, Dr Nitchingham, to seek advice about his anger problems.  He was prescribed a sedative medication, Zyprexa tablets, and has continued to take this medication since.  After he moved to a different suburb he consulted another general practitioner, Dr Neroni.

19.     About five years after the accident he developed a reflux problem.  This caused severe pain, and he would wake up during the night and vomit repeatedly.  He sought treatment for this, and at times was hospitalised and required morphine to ease the pain.  He tried different sorts of medication and was later put on to Somac, which he has been taking for five years.

20.     Mr Petsios no longer needs pain-killing medication for his reflux condition.  However, he gave evidence that he still occasionally vomits, and he still has difficulties from his reflux if he takes medication two or three hours late.  He said that sometimes taking his medication late is unavoidable, and sometimes he does not remember to take his medication on time.  On some occasions he still wakes up at night with pain even when he has taken his medication on time.

21.     Later he developed prostatitis and continuing infections of the urinary system.  He suffered from repeated infections, and was hospitalised on two occasions.  He was referred to a specialist, and remained under the specialist’s care for about 12 months.  He took about 10 courses of antibiotics, but the infections kept recurring.  His symptoms included urinary frequency and some loss of bladder control and pain, and his condition also interfered with his sleep and made his depression worse.

22.     In about 1999, due to his lack of motivation and increasing depression, he gave up his own business and was then unemployed for a time.  After that he worked for his brother-in-law for about eight months in produce markets.  However, due to his psychological difficulties he was late for work in the mornings on occasions, had no motivation, and was argumentative.  It is clear from his evidence that he was not coping, and he gave up this work.

23.     After that Mr Petsios was unemployed for a couple of years.  He then started driving a truck for a cousin, and he did this for over a year.  However, he encountered the same sort of problems doing this work.  He found that on some days he was not even able to go work, and he was unable to get along with the other people at a particular site where he had been sent to work.  He felt it unfair to his cousin to continue on, and gave up that job also.  His prostatitis was also a problem during his work with his cousin.

24.     He said that before the motor vehicle accident he had been easy going and friendly, but he now has a different personality; he becomes angry at times, has difficulty holding a normal conversation, is shy, has difficulty making new friends or acquaintances, has difficulty sleeping, and during his last job found that on occasions he could not drag himself out of bed in the mornings.  He also has difficulty remembering things.

25.     He also uses marijuana, and said that he finds that this generally calms him down.  He said he started using marijuana more and more after the accident as it was a way for him to switch off, and he had been unable to deal with his depression.

Medical and Other Related evidence

26.     I referred above to the treating doctor’s report dated 1 August 2008.  In that report, Dr Neroni referred to a diagnosis of PTSD as the condition that had the most impact.  Under the heading “History” he added that since the accident in 1991, Mr Petsios had had “anxiety, depression, panic attacks, lethargy, lack of motivation, insomnia and paranoid thoughts.”  Dr Neroni referred to “chronic prostatitis/epididymo-orchitis” as the diagnosis of “Condition 2” on the treating doctor’s report form.  He then referred to “reflux/oesophagitis/gastritis” under a section in the form that includes the question: “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” (although I note that during his evidence, Dr Neroni said that he should have shown this as a separate condition that had a significant impact on ability to function).

27.     After the claim had been lodged, Centrelink arranged for a job capacity assessment to be carried out.  The assessment was carried out on 3 September 2008.  The assessor concluded that the conditions of PTSD and prostatitis had not been fully diagnosed, treated and stabilised, and commented that Mr Petsios would benefit from further psychological counselling to address ongoing psychological symptoms, and was awaiting consultation at the Urology Clinic of the Royal Adelaide Hospital to determine further treatment, including possible surgery, for his prostatitis.  The assessor accepted that the reflux condition was permanent and that it had been fully diagnosed, treated and stabilised, but commented that that condition had been optimally managed with medication, and did not qualify for any points under the relevant Impairment Table.

28.     The job capacity assessment report also states that Mr Petsios had said that he had received short-term psychiatric and psychological intervention but did not respond to treatment, and had ceased therapy.  The assessor further reported that Mr Petsios had received a recent referral for psychological counselling but was reluctant to pursue this due to his previous experiences with therapy.  It was also reported that Mr Petsios had advised that there was no significant functional impact arising from his gastro-oesophageal reflux, and that he managed this with medication, and occasionally experienced gastro-intestinal pain/difficulties, but these were “minimal” (exhibit R1, page 83).  The assessor recommended that Mr Petsios should engage in a personal support program, but did not have authority to arrange this.

29.     Mr Petsios then provided a further treating doctor’s report form dated 9 October 2008 from Dr Neroni.  This was in similar terms to the earlier report form.  He also submitted a third treating doctor’s report form, namely a form dated 16 December 2008 prepared by Dr Nitchingham.  This form confirmed that Mr Petsios was suffering from certain psychological conditions and from chronic prostatitis.

30.     At the hearing Mr Petsios tendered a medical report prepared by Dr Neroni dated 8 May 2009, and the Secretary tendered a further job capacity assessment report dated 28 May 2009 prepared by a Ms Shand, a psychologist.  Both Dr Neroni and Ms Shand gave evidence, to which I will refer below.

Consideration

31.     I am satisfied that Mr Petsios is suffering from a combination of debilitating conditions which are very incapacitating, and that he is presently unable to work.  This is apparent from his work history; although his last two jobs involved working for relatives who were sympathetic employers, he found that he was unable to carry out his work in an appropriate way, and in each case he gave up his employment.

32.     However, in considering Mr Petsios’s claim, I must do so by reference to the relevant legislation.  This entails considering the position as at the date when he claimed DSP and during the period of 13 weeks after that.  I must do this by reference to the Impairment Tables, including the conditions contained in the Introduction to those tables.

Psychological conditions

33.     The first condition of which Mr Petsios complains has been described as PTSD, but Dr Neroni’s medical report indicates that Mr Petsios suffers from a range of psychological problems, namely PTSD, major depression, delusional disorder and previous illicit substance abuse.  These stem from the motor vehicle accident in 1991, and the effects of that accident have been progressive and most unfortunate, and have caused him to be in a very difficult position.

34.     It appears from the evidence before me that as at 18 August 2008 and during the period of 13 weeks after that, Mr Petsios’s psychological conditions had not been fully diagnosed and were not fully stabilised within the meaning of paragraphs 4, 5 and 6 of the Introduction to the Impairment Tables.  There is no evidence before me that as at the date of lodging the claim or during the period of 13 weeks after that, Mr Petsios had been referred to a psychiatrist, or that he had tried any other medications apart from the sedative first prescribed some years earlier by Dr Nitchingham.  Further, the treating doctor’s report forms referred to future or planned treatment in the form of psychological/psychiatric counselling and drug therapy, but this had not been undertaken during the relevant period of 13 weeks after he lodged his claim.

35.     A further medical report tendered by Mr Petsios, namely a report dated 20 April 2009 from a psychiatrist, Dr Harvey (exhibit A2), refers to Dr Neroni having referred Mr Petsios to him, and confirms that the motor vehicle accident in 1991 had caused Mr Petsios to suffer from a major depressive disorder at times.  Dr Harvey thought that at the time of his examination (which was presumably shortly before the date of his report), Mr Petsios was suffering from mild-moderate depression, recurrent anxiety and heavy substance misuse for many years.  Dr Harvey also reported on options open to Mr Petsios.  These included carrying on with his current treatment, a change of medication to try anti-depressant medication, and seeking professional counselling help.  This report was provided well after the relevant period (that is, the period of 13 weeks after 18 August 2008), and none of the suggested treatment options had been implemented within that period.  I am unable to say on the evidence before me whether or not there would be an improvement within two years from the lodgement of the claim for DSP if the treatment options suggested by Dr Harvey were carried out.

Reflux disease

36.     Dr Neroni considered that this disease warranted an impairment rating of 10 points.  The relevant criteria in Table 11.1 that are required in order to support a rating of 10 points read as follows:

“Nausea and vomiting : moderate symptoms despite optimal treatment

Peptic ulcer/oesophagitis : continuing frequent symptoms despite optimal treatment.”

37.     Mr Petsios gave evidence as to the frequency and nature of his symptoms of oesophagitis during the period since he has been taking Somac medication.  Having regard to that evidence, I do not think his symptoms could be properly described as frequent symptoms; I think that they more properly fit the description of mild symptoms, being the criteria referred to for a nil rating.  That condition, by itself, therefore does not warrant a rating of 10 points.

Chronic prostatitis

38.     In her job capacity assessment and in the course of her evidence, Ms Shand said that this condition had not been “fully treated” because as at 3 September 2008, Mr Petsios was waiting for an appointment with the Urology Clinic, and Dr Neroni, in his report of May 2009, said that he was waiting for further specialist review and investigations.  I do not think that the comment made by Ms Shand is a correct assessment of the position.  Ms Shand was not aware that Mr Petsios had been receiving treatment from a urologist for a period of about one year prior to claiming DSP.  The fact that Mr Petsios had sought a second opinion from another urologist does not, in my view, mean that the condition had not been treated.  Further, having regard to the treatment he had previously received from the first specialist, it does not follow that the request for the second opinion would have led to any further treatment or to any improvement in the condition.  Gyles J said in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [17]:

It is troubling that an applicant presenting with a long-standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.”

An appeal against his Honour’s decision was dismissed. I think that these remarks apply to this aspect of Mr Petsios’s claim in respect of prostatitis.

39.     I consider that the condition of chronic prostatitis has been fully documented and diagnosed, and that it has been investigated, treated and stabilised.  I accept Dr Neroni’s evidence that it is a permanent condition and that it will last for more than two years, and that his assessment of an impairment rating of 10 points is appropriate.

40.     However, for the reasons referred to above, the position in relation to the psychological conditions in the 13-week period after lodgement of the claim was such that the conditions contained in the Introduction to the Impairment Tables prevent a rating to be assigned to those conditions.  Further, for the above reasons, a rating should not be assigned to the reflux condition.  That means that Mr Petsios did not qualify for DSP as at the date when he lodged his claim, or within 13 weeks after that.

41.     I should add that during her final address, the advocate for the Secretary, Ms Odgers, very properly acknowledged that her submissions as to Mr Petsios’s entitlement to DSP were not relevant to his present situation, and that it would be competent for him to lodge a further claim for DSP.  Any such new claim would have to be assessed by Centrelink in the usual way.  Whilst I cannot make any binding ruling in relation to any such claim, some of the issues that would arise in relation to a new claim were apparent from the hearing before me in relation to the claim previously lodged by Mr Petsios.  It might therefore be of assistance to both parties if I made the following further comments.

(a)Mr Petsios remains seriously incapacitated, particularly as a result of his psychological conditions.

(b)Any new claim that Mr Petsios might now lodge would of course involve re-assessing his various conditions as at the date when he lodges any such claim, and for a period of 13 weeks after that.

(c)This would involve reviewing the position in the light of the reports of Doctors Neroni and Harvey, which post-dated the 13-week period that was relevant to the claim previously made by Mr Petsios.

(d)Mr Petsios’s present position is now different, in that he has undergone counselling, and he has been assessed by a psychiatrist who has provided certain options for future treatment.

(e)If new medication for the psychological conditions is trialled within the 13-week period after lodgement of any new claim for DSP, it should then be said that those conditions had been fully diagnosed and fully stabilised, and also that it had been treated.  It might then be possible to arrive at a prognosis for the period of two years after lodgement of the new claim.

(f)Alternatively, if Mr Petsios remains concerned about the side-effects of any other anti-depressant medication, it would be necessary, in relation to any new claim for DSP, to determine whether that further treatment was not reasonable.  (It was not necessary for me to determine that issue in the present proceedings, because no advice to trial new medications had been given to Mr Petsios within the relevant 13-week period.)

(g)Mr Petsios should be guided by his treating doctor(s) as to whether to trial different medication, but if he fails to do so, he will not have availed himself of the specialist advice from Dr Harvey, and the benefits that might result from that advice.  Further, his claim for DSP might then be rejected by reason of his failure to take the steps recommended by Dr Harvey, unless he can show that there is a medical or other compelling reason not to do so (see paragraph 6 of the Introduction to the Impairment Tables).

(h)Ms Shand gave evidence as to the number of counselling sessions that Mr Petsios should attend before it could be said that his psychological conditions had been “fully treated”.  However, on their proper construction, the relevant conditions of the Introduction only require the conditions to have been “treated”, not “fully treated”.  Further, Ms Shand’s opinion does not appear to take into account that the sessions he had previously undertaken had aggravated his condition.  Dr Neroni considered that further counselling sessions would not be of assistance, and I think that his opinion should be preferred, as he is Mr Petsios’s treating general practitioner.

(i)It would also be necessary to decide in relation to any future claim for DSP whether the loss of function arising from the psychological conditions is such that there is unlikely to be any significant functional improvement, with or without reasonable treatment, within the next two years.

(j)Once again, it was not necessary for me to determine the last issue in the present matter.  However, Ms Shand’s opinion as to the possible outcome of future treatment over a two-year period, and the increased functional capacity that would result from such treatment, seems to me to be speculative.  She did not interview Mr Petsios, and based her job capacity assessment on a file assessment.   I think that other matters contradict Ms Shand’s opinion.  These other matters include the length of time for which Mr Petsios has suffered from his psychological conditions, the fact that his symptoms have increased over time, and that the views expressed by Dr Neroni are based on his having had regular contact with Mr Petsios and his wife, as the treating general practitioner.

42.     However, as I said above, in relation to the claim that is the subject of the present proceedings, I find that Ms Petsios did not satisfy the eligibility criteria for DSP as at 18 August 2008 or during a period of 13 weeks after that date.

Decision

43.     The tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Staker  Associate

Date/s of Hearing  3 September 2009
Date of Decision  3 September 2009
Date of written reasons             16 September 2009
Applicant  In person 
Advocate for the Respondent   Ms L Odgers 
  Centrelink Legal Services