Macokatic and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1340

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1340

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1142

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL MACOKATIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly.  

Date18 May 2007

PlaceSydney

Decision  The reviewable decision is affirmed.  

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

Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – disability support pension – bipolar disorder – issue whether permanent within meaning of Impairment Tables – held condition not fully treated and stabilised – applicant not entitled to disability support pension – reviewable decision affirmed.

LEGISLATION

Schedule 2, s 4(1) Social Security (Administration) Act 1999

s 94, Schedule 1B Social Security Act 1991

s 35 Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly.    

Preliminary Comments  

As the decision that follows explains, on this occasion,  it would be incorrect legally to grant Mr Macokatic the disability support pension (“DSP”) because the impairment of his functioning caused by his medical condition was not permanent within the meaning of the relevant legislation.  

I appreciate that Mr Macokatic will be disappointed by this result, but I would encourage him to appreciate that the result is because his prognosis given by Dr Brash, psychiatrist, is good if he takes his medication and works with Dr Brash to fine-tune it.  To what extent if any his symptoms will impair his ability to function is not yet clear if he can be stabilised on medication.    Mr Macokatic has been under Dr Brash’s care for about 18 months with periods of non-compliance with his medication.  To his credit, during that period he has made appropriate financial arrangements, undertaken part of a pre-apprenticeship course and is currently studying at University.    

Background

1.      Mr Michael Macokatic seeks a disability support pension (“DSP”).   He suffers Bipolar Disorder which means that he suffers mood swings from hypomania to depression.  Hypomania is risk taking, which for Mr Macokatic has involved overspending, and lack of sleep.  When depressed, Mr Macokatic cannot function.  He has been under the care of Dr Brash, psychiatrist, since October 2005.  He was first diagnosed on 16 May 2005 by his general practitioner.  He was born on 22 July 1977 and is presently 29 years old.

2.      Mr Macokatic lodged his application on 8 November 2005 following a suggestion from a Centrelink officer. The application was refused and Mr Macokatic appealed to the Social Security Appeals Tribunal which affirmed the primary decision. 

3. The law requires that Mr Macokatic must satisfy the requirements of the legislation to qualify for the DSP between 8 November 2005 and 7 February 2006, that is during the 13 week period from the date on which the application for DSP is lodged (the qualifying period) (Schedule 2, s 4(1) of the Social Security (Administration) Act 1999). 

The Law

4. The qualification criteria are set out in s 94 of the Social Security Act 1991 (“the Act”). In summary they are:

-Mr Macokatic must have a physical, intellectual or psychiatric impairment.  There is no dispute that he satisfies this criterion.

-his impairment must have at least a 20 point rating under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Schedule 1B of the Act) (“the Impairment Tables”).

-he must have a continuing inability to work.

5.      Mr Kenny who appeared for the Secretary, conceded that Mr Macokatic satisfied the criterion for continuing inability to work.

ISSUE

6.      The issue in these proceedings was whether during the qualification period Mr Macokatic’s condition was permanent.  If it was not, an impairment rating cannot be assigned.   To be permanent:

(a)  the condition must have been fully documented, diagnosed, treated and stabilised, and

(b)  it is more likely than not that it will persist for the foreseeable future, which will be taken as lasting for more than two years

(see the Impairment Tables, paragraphs 3, 4, 5, and 6).

7. The Impairment Tables seek to assess the effects of a person’s impairments on his or her ability to work. To put it another way, the Impairment Tables seek to assess the severity of the impact of the medical condition(s), in this case Mr Macokatic’s symptoms, on normal function as they relate to work.

Evidence of Mr Macokatic

8.      Following his request, Mr Macokatic gave evidence by telephone rather than attending in person. He has not been feeling well lately.  In particular, he is feeling more depressed and suffering from agoraphobia.  His psychiatrist, Dr Brash, prescribed Epilim for his bipolar disorder.  Mr Macokatic had been taking the medication for quite a while but stopped recently because he felt ‘flat’ after his doctor increased the dosage.

9.      Mr Makocatic is studying for a Bachelor of Arts degree at University but is struggling with his studies because he is having difficulty focussing, and recently because of his agoraphobia.  When in public he suffers from anxiety attacks. He mostly stays at home. He has difficulty when walking across bridges, being in public areas and confined spaces. He finds elevators extremely distressing.  He is registered with the disability support unit at the University.

10.     Previously Mr Macokatic has worked for short periods, but his medical conditions have affected his work.  He has been involved in various activities relating to music since he was 12 years old, including making a few amateur recordings, spending six months at Byron Bay in early 2003 trying to break into the music scene there, and in the second half of that year travelling to Cairns, Surfers Paradise and Yorkies Nob trying to perform.  He worked picking grapes in 2001 but cut his finger and stopped work.  Since leaving school he has also done small amounts of labouring work, generally a day or two here and there.

11.     When asked about his music elective in his University course, Mr Macokatic said that this is a class about performing Baroque music. He can play the guitar and piano and sing.

12.     Mr Macokatic told the Tribunal that he had he had done a TAFE catering course, which we infer from Dr Brash’s evidence was at the beginning of 2006, when he was on medication.  He left the course weeks before it ended and expressed his regret that he had not completed it.  He left it to take up a job on a boat in the Whitsunday Islands working in catering, which he said was a rash decision.  He found it difficult to abstain from alcohol and partying.  He lacked sleep and his behaviour became more erratic. This job lasted only a few weeks. He thinks he was sacked and thought that he had run out of his medication while on the boat.   After hitchhiking for some time in northern Queensland, his family helped him, and he returned home by aeroplane.  He saw Dr Brash when he returned.

13.     Mr Macokatic’s health is worse when he does not take his medicine.  He says that money is a problem. That is, as we understand it, he spends it too freely when he suffers from hypomania.  For about six months he has had the Office of the Protective Commissioner (“the OPC”) receive his Newstart Allowance. The OPC pays his rent and pays him an allowance three days a week to meet his living expenses, and an additional amount once a month for printing costs.  He said that this is working well.

14.      At the time of the hearing on Wednesday 2 May, he had a prescription for his medication from Dr Brash whom he had seen on the Monday, but said that he had not been able to purchase the medicine.  Sometimes the money from the OPC is transferred into his account on the wrong day.  However, he had not checked whether the money was in his account.  I infer that his agoraphobia was making it difficult for him to leave his home to go to collect the medication which costs $5.70 for a two month supply.

15.     During Dr Brash’s oral evidence, Mr Macokatic commented that his symptoms of agoraphobia and anxiety attacks were just as difficult for him to deal with as keeping his Bipolar Disorder stabilised.

16.     Mr Macokatic feels that he has not been treated fairly by Centrelink, referring to unnecessary paperwork and unnecessary things.  He has found the process of applying for DSP unsuccessfully, and seeking review, a very depressing experience to say the least.  He believes that he qualifies for the DSP.

Dr Tonkin

17.     Mr Macokatic was first diagnosed by his general practitioner, Dr Tonkin in May 2005.   In his treating doctor’s report Dr Tonkin noted a long history consistent with Bipolar Disorder and that Mr Macokatic was depressed, suffered from poor sleep, reduced motivation, appetite and concentration, suffered anxiety in social situations, was slowed up, and tired.  The doctor had prescribed Zoloft and arranged referral to a psychiatrist.  He considered that Mr Macokatic’s current condition would persist for less than 3 months and that his ability to function would significantly improve in the next 2 years.

Evidence of Dr Brash

18.     Dr Brash filled out a treating doctor’s report on 24 October 2005, the date of Mr Macokatic’s first visit to the doctor.  He provided a history of recurrent episodes of either depression or hypomania.  Depression and panic attacks since age 18 and hypomania since age 24.  He noted that Mr Macokatic’s mood was currently normal but that he was getting over damage done in a recent hypomanic episode.  In relation to hypomania he noted “risk taking, overspending” and “lack of sleep”.  In relation to depression he wrote “flat, no energy, restless legs”.  The current treatment was “nil”, past treatment “Zoloft – no mood stabilisers” and future/planned treatment “Epilim as mood stabiliser”.  He ticked “uncertain” to indicate the patient’s compliance with recommended treatment. 

19.     In relation to how the condition currently affected Mr Macokatic, Dr Brash wrote: “His mood episodes have created havoc in his life – chaotic when hypomanic; unable to function when depressed.”

20.     In his opinion, the current impact of the condition on Mr Macokatic’s ability to function was expected to persist for more than 24 months and it would significantly improve within the next 2 years.

21.     Two other reports from Dr Brash around the qualifying period were in evidence.  They were dated 7 November 2005 and 20 February 2006.  It is unnecessary to set out the content of the reports in detail, given the above summary of Dr Brash’s treating doctor’s report.  Relevantly, the first report stated that the hypomanic episode earlier in 2005 had been triggered by anti-depressants, which I infer was the Zoloft Dr Tonkin had prescribed.  Dr Brash also noted that the episodes of depression were with panic attacks and agoraphobia, and that Mr Macokatic had begun on mood stabilisers “in the last two or three weeks” (Epilim).  Dr Brash had advised Mr Macokatic to avoid antidepressants because of the risk of triggering mania.  “It will probably take some months before he is fully stabilised on treatment”.  Mr Macokatic had suggested that his financial management be controlled by a third party.

22.     In the report of 20 February 2006, Dr Brash said that he had reviewed Mr Macokatic that day, that he had responded well to a small dose of Epilim, and that he reported “improvement with his chronic anxiety symptoms (panic attacks, agoraphobia, and obsessive-compulsive symptoms).  He is now attending a pre-apprenticeship course at TAFE.  His condition is stabilising quite well”. 

23.     During the course of the hearing the Tribunal asked Mr Macokatic whether he would have any objection if Dr Brash was telephoned to give evidence.  He did not, and Dr Brash kindly agreed to give evidence over the telephone which was very helpful.  Due to technical difficulties Dr Brash’s telephone evidence was taken in chambers and was not recorded.

24.     Dr Brash said that Mr Macokatic’s general prognosis was good so long as he was on mood stabilisers (such as Epilim), although Mr Macokatic had felt flat when on them recently. It was a matter of fine tuning.  The doctor said that sometimes it takes a few years to improve a patient’s medication compliance, particularly in the case of young men.

25.     There had been long gaps when Mr Macokatic did not see Dr Brash, and he often missed appointments.  Dr Brash said that Mr Makocatic had seen him on 24 October 2005, 20 February, 18 August and 30 November 2006, 16 March 2007 and a few days before the hearing.  Generally most patients would see him every couple of months. 

26.     Dr Brash said that medication can be difficult for patients with obsessive-compulsive behaviour.   The anxiety symptoms have not been treated yet. The focus has been on treating the Bipolar condition. Dr Brash indicated that he would address the treatment for the anxiety symptoms with Mr Macokatic. 

27.     He said that a patient has to be pretty stable to be able to work.  If Mr Macokatic’s mood was well stabilised, he had a reasonable chance of getting steady work.  However, his history was one of leaving town and going off medication.  Mr Macokatic’s symptoms were episodic, with periods of wellness. 

Mr Todd Martin, Centrelink Psychologist

28.     Mr Todd Martin, a Centrelink Psychologist prepared a Work Capacity/Participation Assessment dated 20 December 2005, although the date of assessment is said to be 30 November 2005.

29.     Mr Martin referred to the diagnosis of Bipolar Disorder.  He recommended assistance for Mr Macokatic for monitoring stabilisation of medication.  He noted that Mr Macokatic may find consistently attending appointments difficult.  He concluded that within 6 to 24 months, Mr Macokatic could work 15-29 hours per week with special disability intervention, and 30 plus hours per week after 24 months.  He suggested work as a musician, and in relation to work capacity stated “depending on stabilising effect of medication”.  He noted that the psychiatrist thought it would be some months before the condition stabilised, and concluded therefore that it “must be deemed temporary”.   

30.     In relation to Mr Macokatic’s ability to function, Mr Martin referred to Mr Brash’s assessment of significant impact on work capacity for more than 2 years and concluded that as stabilisation on medication had not yet been achieved, significant improvement was also expected.

Consideration

31.     It is not disputed that Mr Makocatic suffers Bipolar Disorder and symptoms of anxiety.  Mr Macokatic has been receiving treatment for the Bipolar Disorder since October 2005, but as yet the anxiety symptoms have not been treated, for the reasons explained by Dr Brash.  During the qualifying period Mr Macokatic was on medication, and we know from Dr Brash’s report of 20 February 2006 that he responded well to a small dose of Epilim, and that his condition at that time was stabilising quite well.  Mr Macokatic had reported improvement with his chronic anxiety symptoms (panic attacks, agoraphobia and obsessive-compulsive symptoms).  He had begun a pre-apprenticeship course.

32.     The evidence shows that since then Mr Macokatic has not taken his medication at various times, including at the time of the hearing, and consequently, his health has suffered.  He has also not seen Dr Brash as regularly as he should have, and sometimes has cancelled appointments.  

33.     Dr Brash’s opinion is that Mr Makocatic’s prognosis is good so long as he is taking his mood stabilisers.  Mr Macokatic also knows that he is better when he takes his medication, although before the hearing a change in his medication caused him to feel “flat” which made him decide to stop taking the medication and try to cope by pursuing a healthy lifestyle, rather than returning to see Dr Brash.  His efforts were unsuccessful, and he was unwell at the time of the hearing as described earlier in this decision.

34.     The introduction to the psychiatric Impairment Table 6 states that it is important “to distinguish between temporary and permanent psychiatric disorders.  People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment”.  The introduction also says “Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature.  Table 6 is used for permanent psychiatric disorders only.” 

35.     I find that Mr Macokatic suffers from established psychiatric disorders, Bipolar Disorder and anxiety.  They are not a short term response to a particular life event. The symptoms that he experiences depend on whether he is taking his medication.   Although his anxiety symptoms are not being treated specifically, the evidence is that they are less severe when he takes his medication.  For example, Dr Brash noted improvement in the chronic anxiety symptoms in the 20 February 2006 report, and Mr Macokatic described how his agoraphobia was affecting him at the time of the hearing when he was not taking his medication. 

36. Were the conditions permanent within the meaning of the Impairment Tables during the qualifying period? On the evidence, I conclude that the Bipolar condition had not been fully treated and stabilised during that period. Mr Macokatic had seen Dr Brash just once before the beginning of that period and did not see him again until after that period. Although his symptoms responded to medication, and he was “stabilising” well a few weeks after the end of that period, it was uncertain during the qualifying period whether Mr Macokatic would be compliant, and whether the dosage or medication would need to be changed.

37.     Those uncertainties have been borne out by the later history of periods of compliance and non-compliance, and Dr Brash’s evidence that for some patients, particularly young men, it may take some years to achieve compliance.  Further as of the date of the hearing there was a need to “fine-tune” the medication.

Decision

38. It follows that an impairment rating cannot be given because the condition is not considered permanent in terms of the Act. I must apply the law, which in this case sets out a stringent test to be satisfied. Therefore I affirm the reviewable decision that Mr Macokatic did not qualify for the DSP.

39.     I emphasise that DSP is for people with permanent impairments.  While Mr Macokatic’s Bipolar condition has been present for several years and likely to continue in the future, on the evidence, there seem to be good prospects that his symptoms can be stabilised by medication so that they do not impair his functioning very much.  His prognosis is good on that basis.  While he has had ups and downs since beginning his treatment, he has arranged his financial affairs to prevent overspending, and is currently studying at University.   

Procedure

40. With the agreement of Mr Macokatic, Mr Kenny and Dr Brash, this decision will be sent to Dr Brash to give to Mr Macokatic during an appointment on 22 May 2007. I make a confidentiality or pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 that until 23 of May 2007 this decision not be disclosed to anyone other than Dr Brash, Mr Macokatic, the Centrelink Legal Representative and three others to whom the Centrelink Legal Representative must report, that is the Business Coordinator, Centrelink; the Department’s Account Manager and a Senior Executive Lawyer.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,

Mrs Josephine Kelly.

Signed: Ms P Nimmagadda

Associate

Date of Hearing  2 May 2007               
Date of Decision  18 May 2007
Representative for Applicant   Self-represented
Solicitors for the Respondent  Centrelink Legal Services