Louise Anderson-Clemence and Secretary, Department of Social Services

[2015] AATA 329

[2015] AATA 329  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5227
Re	Louise Anderson-Clemence
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	15 May 2015
Place	Brisbane (heard in Cairns)

The decision under review is affirmed.

.......................[Sgd].................................................

Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension – Post-Concussion Syndrome – adjustment disorder – whether “permanent” – whether applicant’s impairment fully diagnosed, treated and stabilised – functional ability uncertain – future treatments recommended – relevant timeframe – medical evidence inconsistent – medical evidence insufficient – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94(1)

Social Security (Administration) Act 1999 (Cth), Schedule 2, Clause 4

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President P E Hack SC

15 May 2015

1. This is an application by Ms Louise Anderson-Clemence for a review of a decision by Centrelink on behalf of the respondent, the Secretary, Department of Social Services, that she was not qualified for disability support pension. Her claim was made on

   
   

   19 November 2013. Centrelink rejected her claim on 4 February 2014. That decision was affirmed on internal and external review.  

2. Ms Anderson-Clemence seeks a review of the decision to refuse her application for disability support pension. The relevant period to consider her eligibility is at the time of the claim, 19 November 2013, and in the period of 13 weeks thereafter.[1] The criteria that must be satisfied are set out in s 94(1) of the Social Security Act 1991 (Cth). So far as is presently material, that subsection sets out three critical criteria. The person must have a physical, intellectual or psychiatric impairment; the impairment must attract an assessment of 20 points or more under the Impairment Tables; and the person must have a continuing inability to work (as that term is defined in the Act).

   [1]           Social Security (Administration) Act 1999 (Cth), Schedule 2, Clause 4.

3. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   
   

   The Determination also sets out the manner in which impairments are to be assessed.

   
   

   In particular, an impairment rating may only be assigned if the person’s condition is “permanent”.[2] Subsection 6(4) of the Determination provides that a condition is “permanent” if it is fully diagnosed, treated and stabilised by an appropriately qualified medical practitioner, and, if it is more likely than not, in light of available evidence, to persist for more than 2 years.[3] 

   [2]           Subsection 6(3)(a) of the Determination.

   [3]           Subsection 6(4)(a)-(d).

4. In determining whether a condition has been “fully diagnosed”, there must be corroborating evidence of the condition or impairment.  In determining whether it has been “fully treated”, consideration must be given to any treatment or rehabilitation that has been undertaken, and whether that treatment is continuing or is planned in the next two years.[4] The condition or impairment is regarded as “fully stabilised” if the person has undertaken reasonable treatment and, in the professional opinion of an appropriately qualified medical practitioner, any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.[5] 

   [4]           Subsection 6(5).

   [5]           Subsection 6(6).

5. Ms Anderson-Clemence’s impairment is post-concussion syndrome, a diagnosis she received following a head injury sustained when she lost consciousness on an aeroplane in mid-2012. The functional impact of this impairment is that she is “unable to concentrate, [has] poor memory, chronic tiredness, [and] impaired cognition”.

6. The Secretary concedes that Ms Anderson-Clemence has post-concussion syndrome, along with an adjustment disorder, and that each condition is an “impairment”, thereby satisfying section 94(1)(a) of the Act. What remains to be determined is whether, during the relevant period, those impairments warranted an impairment rating of 20 points or more under the Impairment Tables and, if so, whether Ms Anderson-Clemence had a continuing inability to work.

7. The Secretary contends that neither the post-concussion syndrome impairment nor the adjustment disorder were fully diagnosed, treated and stabilised during the relevant period and therefore cannot be assigned an impairment rating.

   The Medical History

8. On 24 December 2012, Dr Zam Cader, a neurologist, diagnosed Ms Anderson-Clemence as having post-concussion syndrome. Dr Cader reported that she described having difficulty with her thinking and that processes which were previously performed without effort now took very careful deliberate thought. She also described feeling “anxious, fearful, depressed and irritable”.[6] Dr Cader further reported that the neurological examination was “unremarkable” and that the CT scan did not show any “significant abnormalities”.[7] Dr Cader expressed optimism that Mr Anderson-Clemence’s symptoms would improve but suggested that if her symptoms deteriorated an anxiolytic, such as Citalopram, may be useful.

   [6]           Exhibit 1, page 137.

   [7]           Exhibit 1, pages 137 - 138.

9. Several months later, on 12 April and 3 May 2013, Dr Sarah Russell, a clinical neuropsychologist, assessed Ms Anderson-Clemence’s impairments. During the assessment, Ms Anderson-Clemence reported severe problems with “noise and light sensitivity, fatigue, forgetfulness, poor concentration and taking longer to think”.[8] In response to a range of tests, Ms Anderson-Clemence was found to be in the average to high range for most aspects of her intellectual and memory abilities. She displayed “excellent” planning and problem-solving abilities and her non-verbal reasoning “was a particular strength”.[9] Dr Russell concluded that there were “no persisting neurological deficits associated with the accident”. She went on to say that:

   [T]hese results are consistent with the literature suggesting that psychological and psychosocial factors are more involved in the maintenance of post concussive symptoms over time with biological factors playing a greater role in the early stages. This highlights the importance of ongoing psychological intervention to address presenting symptoms.[10]

   [8]           Exhibit 1, page 141.

   [9]           Exhibit 1, page 141-144.

   [10]         Exhibit 1, page 144.

10. On 19 November 2013, a general practitioner, Dr M McAuliffe, reported that the impact of Ms Anderson-Clemence’s impairment on her ability to function was that she was “unable to concentrate, [had] poor memory, chronic tiredness, [and] impaired cognition”.

    
    

    Dr McAuliffe stated that the effect of post-concussion syndrome on her ability to function over the next two years was “uncertain” and that past treatments of acupuncture, chiropractic therapy, craniosacral therapy, massage, occupational therapy and psychological therapy would continue.[11] 

    [11]         Exhibit 1, page 89.

11. Between 18 March 2014 and 24 July 2014, Ms Anderson-Clemence attended eight appointments with Ms Louise Lergesner, a clinical psychologist. In her report of 27 July 2014, Ms Lergesner reported that during these sessions Ms Anderson-Clemence was alert and orientated, however, her concentration fluctuated and, at times, she would have difficulty focussing and processing questions. A cognitive screening test indicated “no cognitive impairment in the domains assessed” but a functional independence and assessment measure reported that she “often spills drinks”, “sometimes needs assistance to complete bathing”, “is experiencing ongoing issues with sequential memory”, and “does risky things without thinking”. She also noted that Ms Anderson-Clemence’s post-concussion scores had not improved over the 15-month period since her last assessment and she recommended cognitive behaviour therapy. [12]  

    [12]         Exhibit 1, page 151.

12. On 18 August 2014, Ms Anderson-Clemence provided the Social Security Appeals Tribunal with a medical report of Dr Jessica Adams, a general practitioner. In that report, Dr Adams stated that the functional impact of post-concussion syndrome included “poor endurance, unable to complete tasks like bathing etc without verbal guidance, can’t decision make, fatigued”.[13] Dr Adams also reported that the applicant had adjustment disorder which was diagnosed on 11 August 2014 and secondary to the post-concussion syndrome. The functional impact was reported as “anxiety, poor social interaction, fatigue and endurance, poor planning/ability to follow 3 step task”.[14] Dr Adams reported that the effect of this condition on Ms Anderson-Clemence’s ability to function was that it would “naturally fluctuate with treatment/triggers”.[15]

    [13]         Exhibit 1, page 127.

    [14]         Exhibit 1, page 130.

    [15]         Exhibit 1, page 130.

13. On 23 October 2014, Ms Bronwyn Tanner, an occupational therapist, reported that Ms Anderson-Clemence was experiencing significant limitation with routine daily activities and self-care. She administered a cognitive screening test over two 30-minute sessions and noted moderate deficits with auditory recall, memory and sequencing, multiple digit simple mathematical skills, complex problem solving, social awareness and judgement. Ms Tanner concluded that “[c]ognitively there are suggested issues with a range of executive functioning skills which impact on her ability to undertake complex tasks such as driving, complex planning and visual and auditory processing”. [16]  

    [16]         Exhibit 1, pages 153 – 155.

14. On 28 January 2015, a Job Capacity Assessment report was completed by Mr David Whitehall, a registered psychologist, who reported that “profound deficits such as being unable to complete tasks like bathing without verbal guidance are typically only observed in severe brain injuries”.[17] The assessor concluded that the post-concussion syndrome condition was not fully diagnosed, treated and stabilised as the severe level of impairment described by Dr Adams and Ms Anderson-Clemence’s occupational therapist was not at all consistent with the specialist medical assessments completed by the neurologist and clinical neuropsychologist.

    [17]         Exhibit 4, page 2.

    Consideration

15. Firstly, in relation to the adjustment disorder, Ms Anderson-Clemence received this diagnosis on 11 August 2014, well after the relevant period concluded. As such, it cannot be regarded as having been permanent within the meaning of s 94(1) of the Act as it was not fully diagnosed (much less fully treated and stabilised) by the time Ms Anderson-Clemence submitted her claim or within the 13-week period that followed. It therefore cannot be assigned an impairment rating and it is unnecessary to consider it further.

16. In relation to the post-concussion syndrome, it seems to me that it is simply not possible to say that Ms Anderson-Clemence’s impairment has been fully diagnosed, treated and stabilised, as there is a great deal of inconsistent information about her impairment, her symptoms, and her treatment. Even then, I can only have regard to evidence of Ms Anderson-Clemence’s condition as it was during the 13-week period starting on 19 November 2013. The only evidence in this regard is:

    ·the report of Dr McAuliffe which stated that Ms Anderson-Clemence’s functional ability over the next two years would be “uncertain” and future treatments were recommended;

    ·a letter of support dated 20 November 2013 from Ms Anderson-Clemence’s psychologist, Ms Jackie Coetzee, stating that Ms Anderson-Clemence would “greatly benefit from financial assistance” in relation to DSP;[18] and

    ·a letter from Ms Anderson-Clemence’s chiropractor, Ms Tamara S Taylor, on 20 November 2013, stating that Ms Anderson-Clemence attended the clinic on two occasions (6 and 14 November 2013) and that “[p]resentation, history and examination seem consistent with the previous diagnosis of ‘Post-concussion Syndrome’” although she concedes that this condition is not within her scope of expertise to diagnose.[19]

    [18]          Exhibit 1, page 146.

    [19]          Exhibit 1, page 148.

17. The weight of the evidence suggests that there has been fluctuating severity in Ms Anderson-Clemence’s impairment since the date of claim. Clearly, she was diagnosed with post-concussion syndrome by Dr Cader in 2012 and underwent some level of treatment, however, it is difficult to conclude that her impairment had been fully diagnosed and treated as further testing and treatments were being carried out on Ms Anderson-Clemence by her psychologist and other practitioners after the date of claim. Her clinical psychologist, five months after the relevant period, recommended cognitive behaviour therapy for Ms Anderson-Clemence. Further, as the report of the Job Capacity Assessor, Mr Whitehall, pointed out, the diagnosis does not account for the range of Ms Anderson-Clemence’s symptoms. I find that it is not an impairment that has been fully diagnosed and treated.

18. As to whether Ms Anderson-Clemence’s condition is fully stabilised, there is again a dearth of information about the condition during the relevant period. Many reports were provided outside the relevant time but, even then, the evidence is largely inconsistent. For example, Dr Cader suggested that Ms Anderson-Clemence’s symptoms would improve over time; Dr Russell highlighted the importance of ongoing psychological intervention; but Dr Adams took a contrary view and stated that the effect of the impairment on Ms Anderson-Clemence’s ability to function, over the following two years, would “remain unchanged”.[20] At this stage, we simply do not know what functional improvement, if any, is likely with further treatment. Therefore, I am not satisfied that Ms Anderson-Clemence has received all reasonable treatment so as to indicate that her condition has been fully stabilised or, alternatively, that any further reasonable treatment is unlikely to result in significant functional improvement. During the relevant period, it cannot be said that Ms Anderson-Clemence’s impairment in respect of the post-concussion syndrome was fully diagnosed, treated and stabilised such that it could be regarded as permanent.

    [20]          Exhibit 1, page 127.

19. That leads to the next difficulty – even if it were possible to regard Ms Anderson-Clemence’s condition as permanent, there is again conflicting evidence about the extent of her impairment for the purposes of s 94(1)(b). There is certainly no suggestion in the evidence that Ms Anderson-Clemence’s post-concussion syndrome attracted a 20-point impairment rating under the Impairment Tables and, in the absence of that evidence, I must find that Ms Anderson-Clemence’s impairment fails to satisfy the essential requirement in s 94(1)(b). It is then unnecessary to deal with the continuing inability to work criteria in s 94(1)(c) of the Act. In light of those conclusions, Ms Anderson-Clemence is not qualified to receive disability support pension. It is, however, open to Ms Anderson-Clemence to test her eligibility again once her post-concussion syndrome has been fully diagnosed, treated and stabilised.

20. In those circumstances the decision under review was correct. It will be affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

..........................[Sgd]..............................................

Associate

Dated 15 May 2015

Date of hearing	10 April 2015
Applicant	In person
Solicitors for the Respondent	Mr J Guthrie, Department of Human Services