Mazur and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 985

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 985

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2632

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL STEFAN MAZUR

Applicant

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

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date5 November 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – condition of narcolepsy – not diagnosed, treated and stabilised at time of application for DSP – subsequent grant of DSP for different condition – decision affirmed

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 4

REASONS FOR DECISION

5 November 2008   Senior Member L Hastwell  

1.      Michael Mazur was a recipient of a Disability Support Pension (DSP) from 1998 until 2005 for the condition of narcolepsy.

2.      Upon a review of his entitlement in 2005, it was determined that the condition was now considered temporary and that it was not fully treated and stabilised.  His DSP was cancelled in 2005.

3.      He re-applied for DSP on 27 October 2006.  The supporting treating doctor’s report (T24) stated that the condition from which he suffered was attention deficit disorder.  That appears to have been an error or an oversight and the applicant’s intention was that narcolepsy was the condition upon which he applied for DSP on that occasion.

4.      A Job Capacity Assessment Report completed on 21 November 2006 (T25) found that the condition of narcolepsy was temporary and so no impairment points were assigned to that condition.  His claim for pension was rejected.  This decision was reviewed by an Authorised Review Officer (ARO) and affirmed.

5.      On 23 May 2007 the Social Security Appeals Tribunal (the SSAT) affirmed the decision of the Authorised Review Officer. 

6.      Mr Mazur seeks a review of the SSAT decision to this Tribunal.

7.      Since lodging his application for review, the applicant has been granted DSP upon a fresh application based on the condition of borderline personality disorder. 

legislation

8. Section 94 of the Social Security Act 1991 (the Act) sets out the qualifications for DSP.  In this case, the threshold issue is whether Mr Mazur has a physical, intellectual or psychiatric impairment that attracts a rating of 20 or more points under the relevant impairment tables.  If he cannot satisfy that requirement at the time of his application, or within 13 weeks of that date, then there is no need for the Tribunal to consider whether he has “a continuing inability to work” as defined in the legislation.

9. Section 94(1) sets out the threshold issue in the following terms:

“94       Qualification for disability support pension

(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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

…”

10.     The Social Security (Administration) Act 1999 (the Administration Act) provides the rules for working out the start day of an entitlement to a Social Security benefit.

11. Section 4 provides as follows:

“4  Start day—early claim

(1)      If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)      the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2)      For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;”

at the time of the application did mr mazur have a physical, intellectual or psychiatric impairment?

12. Mr Mazur gave evidence at the hearing by telephone. The Tribunal received the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 into evidence as Exhibit R1.

13.     Additional medical evidence was available to the Tribunal as contained in Exhibit R1.  Also, available were a report from Mitch Durbridge, a psychologist at the Brian Burdekin Clinic, dated 18 July 2008, a letter from Dr Damian Mead of the Brian Burdekin Clinic, dated 4 February 2008 and a report of Dr Graham Norton, neurologist, dated 23 July 2007.

14.     The application for DSP was lodged on 27 October 2006 (T5). 

15.     That application did not refer to any specific disability, illness or injury.  Dr Mead, his treating doctor, subsequently provided a report to Centrelink dated 3 November 2006 (T24) in which he referred to the diagnosis of the condition as being “attention deficit disorder”.

16.     The condition for which Mr Mazur was granted DSP in 1998 was narcolepsy, which had been confirmed by a sleep study in 1996.  A Health Services Australia (HSA) medical assessment in July 2005 had recommended further neurological assessment and concluded that the condition may benefit from new treatment and that Mr Mazur should be considered temporarily unfit for work pending the outcome of these interventions. 

17.     As a result of Mr Mazur’s further application for DSP, a Job Capacity Assessment Report was carried out by Patricia Bhagwanani on 21 November 2006 (T25).  She expressed the view that although the treating doctor’s report lodged in support of the claim indicated a presumptive diagnosis of attention deficit disorder, it was clear from the other medical evidence that the condition referred to should have been narcolepsy.  Dr Mead, in a telephone discussion with Ms Bhagwanani, confirmed that the diagnosis should be narcolepsy.  He also commented that he had only seen Mr Mazur on limited occasions and he considered that further specialist referral to a neurologist was appropriate. 

18.     Ms Bhagwanani also noted that, in 2005, a treating doctor’s report had indicated that follow up was needed to investigate any advances in treatment for narcolepsy, but that because Mr Mazur had a history of moving around, follow up had not been possible.

19.     She concluded that the condition of narcolepsy had not been fully treated and stabilised and that no impairment rating should be assigned.

20.     Mr Mazur told the Tribunal that he still sleeps a lot and he is very lethargic and that at times this can appear to be depression to outsiders.  He said that he does not suffer from a typical form of narcolepsy, but he does suffer from a significant reduction in energy levels.

21.     He has recently been housed in stable accommodation in Adelaide.  He enjoys working when he does work and considers himself to have a good work ethic, but he told the Tribunal that at times he can only work for a couple of months before he is too fatigued to do anything more. 

22.     He said that he has now been granted DSP on the basis of a diagnosis of borderline personality disorder.

23.     He confirmed that he had missed a sleep test in Brisbane because he was due to come back to Adelaide and that there was some uncertainty about his condition in 2006.

the other medical evidence

24.      On 2 March 2005, in a treating doctor’s report provided to Centrelink (T18), Dr Mowat confirmed a diagnosis of narcolepsy based on the 1997 diagnosis, but commented that there should be a review of the treatment that Mr Mazur was using as new advances were available in the treatment of that condition. 

25.     On 2 July 2005, a HSA medical assessment report (T23) found that Mr Mazur’s condition was not fully treated and stabilised and suggested it should be reviewed in between 3 to 6 months.  At the time, it was proposed that a further diagnostic sleep study be carried out.  Because Mr Mazur then moved to Adelaide, he did not follow through with that study, which was to take place in Brisbane.

26.     In a Work Capacity/Participation Assessment Report carried out in May 2005 (T21/141-153), the assessor determined that Mr Mazur was awaiting further sleep tests and considered that with further investigation of treatment options, he could gradually return to work within 24 months, although probably only to “30+” hours per week.

27.     The next medical evidence available is in 2006, when Dr Mead provided a report in support of Mr Mazur’s application that is the subject of this review (T24).

28.     In a report dated 22 February 2007 (T26) Dr Tucker, general practitioner, expressed the view, based on the 1998 sleep study, that the diagnosis was narcolepsy and as it is a life long illness, he considered the condition permanent. 

29.     Mr Mazur was then referred to a neurologist, Dr Norton at the Neurology Department of the Modbury Hospital.  In a report dated 23 July 2007, Dr Norton expressed the view that it was unlikely that Mr Mazur suffered from narcolepsy and the multiple sleep latency test gave “no convincing evidence of a short sleep latency”.  He expressed the view that a psychiatric or psychological condition may be contributing to his condition.

consideration and application of the law

30. For Mr Mazur to qualify for DSP at the date of his application, the Act requires that at the date of application or within 13 weeks of that date, he must satisfy the requirements in s 94(1)(a), (b) and (c) of the Act.

31. The first requirement to satisfy the legislation is that he must have a physical, intellectual or psychiatric impairment and s 94(1)(b) requires that it attract an impairment rating of at least 20 points under the relevant table.

32.     The introduction to the impairment tables in Schedule 1B of the Act outlines the requirements that must be satisfied before an impairment rating can be assigned to a condition.  These are:

·The condition must be fully documented, diagnosed, investigated, treated and stabilised.

·The condition must be considered permanent.

·Once the condition has been diagnosed, treated and stabilised it is accepted as being permanent if in the light of available evidence it is more likely that not that it will persist for the foreseeable future.  This will be taken as lasting for more than 2 years.

33.     It seems that there is uncertainty as to the condition from which Mr Mazur has suffered over many years.  It is interesting to note that in a letter from the Brian Burdekin Clinic to Ms Margaret Riley at Legal Services Commission, Dr Mead commented that Mr Mazur’s diagnosis of narcolepsy has since been discounted, that he is no longer receiving medication for narcolepsy and it is his opinion that the correct diagnosis was one of borderline personality disorder.

34.     DSP has since been granted on that basis.

35.     The Tribunal is satisfied on all available evidence that at the time of the application in October 2006, the diagnosis of narcolepsy, although still in place at the time, had become uncertain.  There were new advances in the treatment of narcolepsy and the medical opinion was that a review of the diagnosis and treatment was in order.  The subsequent sleep study carried out by Dr Norton in early 2007 did not support the finding of narcolepsy and Dr Norton expressed the view that a psychiatric or psychological condition may be causing Mr Mazur’s problems. 

36.     In all the circumstances, the Tribunal is satisfied that at the time of his application in 2006, there was no certainty at all as to Mr Mazur’s underlying condition.  It had not been fully diagnosed, treated and stabilised within the meaning of the pre-amble to the impairment tables.  The diagnosis of narcolepsy appears to have now been discounted as a result of a further sleep study being carried out and there is now a firm diagnosis of borderline personality disorder.  This is an entirely different condition to the condition for which the DSP was sought in 2006.

37.     To qualify for DSP on the basis of the 2006 application, the condition must have been diagnosed, treated and stabilised with the 13 week period.  It was not and a subsequent and new diagnosis has emerged for which Mr Mazur now receives DSP.

38.     In the circumstances, the Tribunal is satisfied that at the time of Mr Mazur’s application, or within 13 weeks of that date, he could not qualify for DSP.

decision

39.     The Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ..........J Coulthard..............................................
  Associate

Date of Hearing  20 October 2008
Date of Decision  5 November 2008
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Goldsworthy

Centrelink Legal Services Branch