Luskoski and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1489

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1489

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600936

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		STRASHO LUSKOSKI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date29 June 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Kerry Breen

Member

SOCIAL SECURITY ‑ disability support pension – recently diagnosed mental illness – condition not fully investigated, treated and stabilised – decision affirmed

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

29 June 2007 Dr Kerry Breen, Member   

1.      Mr Strasho Luskoski is a 35 year old man who claims to have suffered from an untreated mental illness since at least the age of 23 years, which was the time when his mother died.  He has never been employed and has been supported by his brother since the death of his mother.  He had not sought or received treatment for this illness until he was admitted to hospital for twelve days while he was in Macedonia in April 2005.

2.      Mr Luskoski returned to Australia in August 2005.  On 30 August 2005 he applied to Centrelink for disability support pension (DSP) claiming to be suffering from obsessive compulsive disorder (OCD).  Centrelink is the service delivery agency for the Department of Employment and Workplace Relations.

3.      Centrelink rejected his claim for DSP on 21 September 2005 on the basis that Mr Luskoski’s medical condition was temporary.  Mr Luskoski requested a review of this decision by an authorised review officer (ARO).  The ARO delayed the review of Mr Luskoski’s DSP application pending a psychiatric report, which Mr Luskoski’s representative (his brother) had indicated would be available shortly.  Centrelink did not receive the report however, and on 21 April 2006, the ARO decided that any further delay in deciding the application was not acceptable and made a decision based on the material to hand.  The ARO decided to reject the application on the basis that Mr Luskoski’s depression/psychiatric condition had not been fully investigated, treated and stabilised as is required under section 94(1)(b) of the Social Security Act 1991 (the Act).  In a letter to Mr Luskoski explaining this decision, the ARO stated that on the available evidence Mr Luskoski was temporarily unfit for work and added:

Your condition could be reviewed in the future when a better assessment of the long term outlook of your medical condition should then be able to be assessed, after further treatment of your depression/psychiatric condition.  You may reapply for Disability Support Pension again in the future, with new or additional medical evidence.

4.      Mr Luskoski sought review of this decision by the Social Security Appeals Tribunal (SSAT), which heard the matter on 29 August 2006.  His application was accompanied by a treating doctor’s report from Dr S Rozario, a general practitioner, dated 29 August 2005 and a treating doctor’s report from Dr G Dhillon, another general medical practitioner, dated 18 October 2005.  He was referred to Dr C Schiuu, consultant psychiatrist at Werribee Mercy Mental Health Program, Saltwater Clinic where he was assessed once on 30 September 2005 and put on a waiting list for out‑patient treatment.  That treatment did not eventuate and from 1 December 2005, he came under the care of Dr D Kochar psychiatrist.  Dr Kochar provided a medical report dated 22 May 2006, based on six consultations.  By that date, Centrelink had received the report of Dr Kochar and it was available to the SSAT. 

5. The SSAT determined, consistent with the legislation, that it had to base its decision on Mr Luskoski’s state of health at the time of his application for DSP and in the subsequent 13 weeks (the relevant period ) (sub-clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999).  While Dr Kochar’s involvement with Mr Luskoski started at the end of that 13 week period, his assessment related predominantly to Mr Luskoski’s health after the relevant period.  Therefore, the SSAT did not take Dr Kochar’s opinion into consideration.  The SSAT decided to affirm the decision to reject Mr Luskoski’s application for DSP.

6.      Mr Luskoski now seeks a review of the SSAT decision by this Tribunal.

ISSUES AND LEGISLATION

7.      The issues in this case are drawn from section 94 of the Act and can be paraphrased as follows: during the relevant period:

(a)     did Mr Luskoski have a psychiatric illness (impairment);

(b)     had that illness been fully investigated, treated and stabilised;

(c)did the illness cause an impairment which rates at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables); and

(d)did Mr Luskoski have a continuing inability to work because of that impairment. 

8.      If any one of these four requirements of the legislation is not met, Mr Luskoski does not qualify for DSP within the relevant period.

9.      Section 94 of the Act provides:

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…

2.      In Schedule 1B of the Act the Introduction to the Impairment Tables provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence, Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.        The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

Does Mr Luskoski have a Psychiatric Illness (impairment)?

10.     At the time of his application for DSP, and during the time that Centrelink was considering his application (including the time up until the decision of the ARO), the available medical assessments of Mr Luskoski supported a diagnosis of a serious mental health problem.  Dr Rozario’s report identified a psychiatric illness with onset in 1994, marked by a period of severe self neglect dehydration and malnutrition requiring involuntary admission to hospital in Macedonia in April 2005.  Her report also mentions anxiety/depression.  Dr Rozario noted that he had not yet seen a psychiatrist and that he was awaiting assessment at Werribee Psych.

11.     Mr Luskoski was assessed by Dr J H’ng of Health Services Australia on 14 September 2005.  Dr H’ng noted that Mr Luskoski had been diagnosed as suffering from OCD in Macedonia in April 2005.  He described Mr Luskoski as having a flat affect; minimally responsive and observed that his mental illness affected his ability to function via Neglect / poor self care, Social isolation and Disorganised behaviour.  He also noted that Mr Luskoski Requires caring from brother.   

12.     Dr Dhillon’s report provided a diagnosis of depressive psychosis and recorded self-neglect.  Dr Dhillon reported Mr Luskoski’s then current symptoms as withdrawn, nervous, depress, lacks initiative and drive, affect flat.

13.     Dr C Schiuu, who wrote to Dr Dhillon on 30 September 2005, described Mr Luskoski as presenting with atypical symptoms of OCD and depression and added however I do question the possibility of a psychotic illness. 

14.     Dr D Kochar saw Mr Luskoski six times between 1 December 2005 and 27 April 2006.  In his report Dr Kochar does not provide a final or formal psychiatric diagnosis but describes his condition thus:

According to the history available to me it is clear that Mr Luskoski developed a severe condition of anxiety and depression, and obsessive-compulsive behaviour.   He spent long hours of isolation in his bathroom and engaged in compulsive, repetitive, ritualistic hand washing behaviour in response to his fear of contamination and his fear of hurting others.  He also engaged in complex rituals of counting and moving things in different orders and placing them in a certain way.  His condition worsened in 1994 after the death of his mother.  He became increasingly self-negligent and needed to be cared for by his brother for his daily needs.

15.     I am therefore satisfied from this clear and consistent evidence that Mr Luskoski suffered from a serious mental illness.  Therefore, he satisfies section 94(1)(a) of the Act.

Has the Illness been Fully Investigated, Treated and Stabilised?

16.     The evidence in regard to this question is consistent from every source.  Mr Luskoski’s brother, who has cared for him for several years, described to the SSAT the reluctance of his brother to seek treatment.  The brief report from the hospital in Macedonia, combined with his brother’s account of the medical issues which led to hospital admission, indicates that that admission was to deal with a medical crisis.  This followed upon physical self‑neglect and does not suggest treatment or stabilisation of the mental ill-health had been commenced, let alone achieved.

17.     Dr Rozario’s report refers to awaiting assessment, precise diagnosis and treatment at Werribee Psych.  Dr Dhillon refers to Mr Luskoski having seen the psychiatrist at Werribee and that further treatment is to take place.

18.     Dr Kochar’s report, prepared some six months after the end of the thirteen week period, describes him receiving treatment in the form of supportive psychotherapy, SSRI’s such as Prozac 40 mg per day and his being incapable of engaging in CBT (ie cognitive behavioural therapy) because of the severity of his condition.  While Dr Kochar expresses a view about his long term capacity to work, his report is silent in regard to the likelihood of any improvement in his mental health over the next 24 months.

19. I therefore conclude that during the relevant period, Mr Luskoski’s mental illness had not been fully investigated, treated and stabilised. Therefore, he does not satisfy section 94(1)(b) of the Act.

Does the Illness cause an Impairment which Rates at least 20 points under Schedule 1B of the Act?

20.     The Impairment Tables are only applicable where the condition leading to impairment has been fully investigated treated and stabilised and likely to continue for at least twenty four months.  Conditions not meeting these requirements are deemed to be temporary and do not attract an impairment rating.

21.     As I have decided that Mr Luskoski’s mental illness during the relevant period had not been fully investigated, treated and stabilised, it does not attract an impairment rating.

Does Mr Luskoski have a Continuing Inability to Work because of Impairment? 

22.     I am only required to address this question where the first three requirements have been met.  As described above, Mr Luskoski’s application fails to meet the second criterion, so it is not necessary for me to consider Mr Luskoski’s ability to work from a legal perspective.  However, it is quite clear that at the relevant time Mr Luskoski remained very ill, and via the provision of appropriate medical certificates, would have been entitled to sickness benefits and would not have been subjected to the work test of the newstart allowance.

CONCLUSION

23.     That being said, it has not escaped my attention that Mr Luskoski’s illness has been very longstanding and has had a very serious impact on him and his immediate family.  This situation of long‑standing serious mental illness without ever seeking access to specialist assessment and treatment is very uncommon in Australia.  I also note the poor prognosis with regard to future capacity to be employed that psychiatrist Dr Kochar has given after six assessments.

24.     In his reasons for decision dated 21 April 2006, the ARO stated that it is open to Mr Luskoski and/or his representative(s) to make a new application for a DSP based on an updated report from his treating psychiatrist.  Given the uncommon nature of the very long delay in diagnosis and access to treatment and the uncertainty still of the precise diagnosis, if such an application is received, Centrelink may wish to have Mr Luskoski’s prognosis and work capacity for the next 24 months assessed by an independent specialist psychiatrist.

DECISION

25.     For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Kerry Breen, Member

(sgd)    Olympia Sarrinikolaou

Clerk

Date of Hearing:  Hearing on the papers
Date of Decision:  29 June 2007
Advocate for the Applicant:         Self-represented
Advocate for the Respondent:      Mr D Perdon, Centrelink Legal Services Branch