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

[2010] AATA 264

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 264

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4564

GENERAL ADMINISTRATIVE DIVISION		)
Re		BEVERLEE McCORMACK

Applicant

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

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date15 April 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Continuing inability to work – Decision affirmed

Social Security Act 1991 (Cth) s94, Sch 1A, Sch 1B

Property Agents and Motor Dealers Act 2000 (Qld)

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

15 April 2010 Dr P McDermott, RFD, Senior Member  

1.      I have to decide whether Ms Beverlee McCormack was, on 13 May 2009 qualified for disability support pension.  Her eligibility for that benefit is dependent upon whether she had an impairment which should be assigned an impairment rating of 20 points and whether she has a “continuing inability to work” as defined in social security law.  For the reasons which follow, I consider that at 13 May 2009 she was not eligible to receive disability support pension.

BACKGROUND

2.      On 20 November 2006, Ms McCormack made a claim for disability support pension which was granted from 20 November 2006.  At that time it was considered appropriate to review her eligibility for that benefit in two years time.  On 23 February 2009 a review of her eligibility was undertaken.  In support of her claim to the benefit, Ms McCormack lodged a treating doctor’s report.  Centrelink obtained a job capacity assessment report from Ms Karla Milner who was then an intern psychologist.

3.      On 13 May 2009 (‘the relevant date’) Centrelink made a decision to cancel Ms McCormack’s disability support pension.  The basis of that decision was that Ms McCormack was no longer qualified to the benefit as her medical condition would not be assigned an impairment rating of 20 points or more and that she did not have a continuing inability to work.  On 21 May 2009, Ms McCormack lodged another treating doctor’s report prepared by Dr Radovic.  On 16 June 2009, Centrelink obtained a further job capacity assessment which was completed by a registered occupational therapist.

4.      On 2 July 2009, an original decision maker within Centrelink reconsidered the entitlement of Ms McCormack to disability support pension and affirmed the earlier decision to cancel disability support pension.

5.      Ms McCormack sought a further review of the decision to cancel disability support pension.  On 9 July 2009, an authorised review officer affirmed the earlier decision to cancel disability support pension.

6.      Ms McCormack then sought review by the Social Security Appeals Tribunal.  That Tribunal affirmed the cancellation decision and made a decision that Ms McCormack’s condition should be given an impairment rating of 10 points.  Having regard to that finding it was not necessary for that Tribunal to consider whether Ms McCormack had a “continuing inability to work” as defined by that Act.

7.      On 23 September 2009 Ms McCormack made an application to this Tribunal to review the cancellation of disability support pension.

APPLICABLE LEGISLATION

8. The relevant legislation that I have to administer is s 94 of the Social Security Act 1991 (Cth) (the Act) which, at the relevant date, provided the three criteria which needed in this case to be satisfied in order for an applicant to qualify for disability support pension.

9.      First, an applicant had to have a physical, intellectual or psychiatric impairment (s 94(1)(a)).

10.     Secondly, if an applicant had an impairment, that person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)).

11.     Thirdly, an applicant must also have had a “continuing inability to work” as defined by the Act (s 94(1)(c)).

12. The expression “continuing inability to work” is defined by s 94(2) of the Act which, at the relevant time, provided:

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. 

The expression “work” was, at the relevant time, defined as being work of at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not locally accessible by the person (s 94(5)).

ISSUES FOR CONSIDERATION

13. The Secretary accepts that, at the relevant date, the evidence establishes that Ms McCormack had a ‘physical, intellectual or psychiatric impairment’ as required by s 94(1)(a) of the Act. I am satisfied that the Secretary has properly conceded that Ms McCormack has a “physical, intellectual or psychiatric impairment” which is her bipolar mood disorder. The bipolar mood disorder certainly is a psychiatric impairment.

14. The Secretary does not accept that, at the relevant date, Ms McCormack’s impairment was, at the relevant time, of 20 points or more and, as such, she did not satisfy s94(1)(b) of the Act.

15. The Secretary also contends that Ms McCormack, at the relevant time, did not have a continuing inability to work as required by s 94(1)(c) of the Act.

MEDICAL EVIDENCE OF IMPAIRMENT

16.     The Secretary has properly conceded that Ms McCormack has a bipolar mood disorder condition.  There are a number of medical reports in evidence before me which verify that Ms McCormack does suffer from this condition.

17.     On 18 October 2006 Dr Zoran Radovic, the treating psychiatrist, made a report in which he expressed his opinion that Ms McCormack had a bipolar mood disorder.  In that report he mentioned that there are symptoms of “mood swings, depression, anxiety, poor sleep and impaired cognition”.  At that time Dr Radovic indicated that he expected the condition would fluctuate over the next two years.

18.     On 16 November 2006, Dr Kevin Farrell, a medical practitioner with Health Services Australia, provided his report in which he also concluded that Ms McCormack suffered from bipolar affective disorder.

19.     On 13 March 2009, Dr Radovic provided a treating doctor’s report indicating that Ms McCormack continues to suffer from bipolar mood disorder.  On 20 May 2009 Dr Radovic provided a further report in which he confirmed his previous diagnosis and expressed the opinion that Ms McCormack’s condition would persist for more than 24 months, but would fluctuate.

20.     On 1 February 2010 Dr Radovic provided a report to be tendered in evidence before this Tribunal in support of this application of Ms McCormack.  In his report Dr Radovic confirmed his diagnosis that Ms McCormack has bipolar mood disorder Type II.  That report was commissioned by Ms McCormack.  Dr Radovic had regard to the guidelines for compiling a report that was issued on 4 December 2009 to Dr Radovic by the respondent.[1]  Dr Radovic remarked:

Ms McCormack’s suffers a psychiatric illness (bipolar mood disorder type II) with significant symptomatology and functional impairment in interpersonal and workplace relationships with serious disruption of her ability to perform any type of work at present or in the future.

In my opinion Ms [m]cCormack’s bipolar mood disorder presents with symptoms severe enough to cause an impairment rating of 20 points according to table 6 of schedule 1B of the Impairment Tables of the Social Security Act 1991.

I believe that Ms McCormack presented with such a condition and impairment on the 13^th May 2009 and she still presents with the same level of impairment.

[1] Exhibit C.

JOB CAPACITY ASSESSMENT REPORTS

21.     There are a number of job capacity assessment reports that are in evidence before me.

22.     On 3 October 2006, Ms Majinder Daley, a registered nurse with Health Services Australia, provided the following job capacity assessment of Ms McCormack:

Medical History – Depression – currently seeing a psychiatrist and is on anti-depressants.

Client had worked in real estate field for 20 years.  Client felt the pressures of the job were overwhelming.  Client has not worked since April 2004.

Client is unsure on what her future work goals are and constantly feels tired and finds it difficult to motivate herself and concentrate.

Client is wishing to seek employment with support from a programme.

The job capacity assessor indicated that Ms McCormack’s depression was a temporary medical condition and her temporary capacity for work was 0-7 hours per week but that she had a future capacity for work of 30 hours per week.

23.     On 16 November 2006, Dr Kevin Farrell, registered medical practitioner with Health Services Australia provided a job capacity assessment report in relation to Ms McCormack. In that report he expressed the view that her bipolar affective disorder should be given an impairment rating of 20 points. Dr Farrell remarked:

Beverlee is …[2] yrs old and, until April 2004, worked in the RE field for 20 yrs

[2] I do not consider that it is necessary to disclose the age of Ms McCormack in these reasons which are a matter of public record. 

She has bipolar disorder rating 20 points

She is unfit for work for 15+ hrs per week for 2 yrs, at which time review is recommended.

A job capacity assessment report prepared by Ms Karla Milner on 6 May 2009 noted that:

The client reported past symptoms of bipolar which had a significant impact on her functioning however following 2 years of treatment with a psychiatrist she stated she is much improved despite recent feelings of low mood (sadness) and anhedonia, at which time her medication was increased which she stated has been effective.

Ms Milner further reported that:

Beverlee reported that for many years she oscillated between moods that were excessively high, when she exhibited some bizarre behaviours, and periods of extremely low moods.  She reported that for many years she was treated with medication for depression until just over 2 years ago when Dr Radovic, who at the time had already been treating her for 12 months, diagnosed her with bipolar affective disorder.  Beverlee stated that the medication he prescribed resulted in stabilising her moods. However, recently she reported consulting Dr Radovic again as she was experiencing extreme sadness and anhedonia, at which stage he increased her Zoloft, and she reported this has helped considerably as she is no longer sad.  Beverlee reported having some psychological intervention with Dr Radovic and a few sessions with a psychologist a few years ago.

24.     Ms Milner assigned a rating of 10 points for the condition.  Ms Milner expressed the view that Ms McCormack’s future work capacity within 2 years and without any intervention, was 8-14 hours per week and that her future work capacity, with intervention was 15-22 hours per week.

25.     On 16 June 2009, Ms Pam Walker, registered occupational therapist employed by Centrelink, provided a further job capacity assessment.  Ms Walker did this review on the records of Centrelink as Ms McCormack was then visiting her father in Victoria. In that report Ms Walker remarked:

Ms McCormack was rated on table 6 for the functional impact of her bipolar affective disorder.  She was rated at 10 points because she has reported symptoms of BPAD which had a significant impact on her functioning, however following 2 years of treatment with a psychiatrist she stated she is much improved & that she has responded well to increased dosage of her medication to settle some recent increase in her symptoms.

The onset of this condition is noted as 2005 on the current TDR, but she has reported being able to continue working her own property management business between 2005 & 2007, before selling it.  She has reported that she continues to work occasionally for her ex husband who owns a real estate business locally, doing his books and other less stressful tasks.  She has also reported motivation to secure work 2-3 days a week in a relatively stress free role, perhaps in voluntary work.  Therefore she has a demonstrated capacity for continued work since the onset of this condition & reports improvement with psychiatric treatment, indicating that this condition is not causing a serious disruption of work attendance or ability to work.

Ms Walker confirmed an impairment rating of 10 points that was earlier given on 6 May 2009.

APPROPRIATE RATING FOR IMPAIRMENT

26. I am satisfied that the Secretary has properly conceded that Ms McCormack has a ‘physical, intellectual or psychiatric impairment’ as required by s 94(1)(a) of the Act. I now have to assign an appropriate rating for that impairment.

27.     I appreciate that there is a divergence of opinion as to what is the appropriate rating that should be assigned to the impairment.  I am required to assess the condition of Ms McCormack by reference to her condition at the relevant date.

28.     Dr Radovic, in his report of 1 February 2010, has mentioned that Ms McCormack has the following symptoms: “At mental state Ms McCormack presents as a tall, average built, casually dressed and generally a cooperative and pleasant lady.  She presents with increased anxiety, muscle tension and irritability. Her mood is low, depressed and her affect is anxious, depressed, reactive and congruent with her reported mood and thinking process.” 

29. He further remarked: “Ms McCormack’s bipolar mood disorder presents with symptoms severe enough to cause an impairment rating of 20 points according to table 6 of schedule 1B of the Impairment Tables of the Social Security Act 1991”.

30. I am bound by a decision of the Federal Court of Australia to bear in mind that paragraphs 4 and 6 of the Introduction to Schedule 1B of the Act set out a number of “mandatory requirements” that must be considered and satisfied before any impairment rating can be assigned to a condition: Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606. Paragraph 4 states that a rating is only to be assigned after a comprehensive history and examination. I am satisfied that Ms McCormack has been comprehensively examined by Dr Radovic and Dr Farrell. Paragraph 5 of the Introduction requires the condition to be permanent before a rating can be attributed under the Impairment Tables. 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. It is important to mention that the introduction to Table 6 states that Table 6 is used for permanent psychiatric disorders only.

31.     After reviewing the evidence before me I have come to the conclusion that the bipolar mood disorder of Ms McCormack is a permanent condition.  Dr Radovic, in his report of 1 February 2010[3], has expressed his view that Ms McCormack has had a bipolar mood disorder since she was a teenager.  He has also remarked that the condition of Ms McCormack “is long term in nature”.  In the circumstances I consider that it is appropriate for me to attribute a rating to the bipolar mood disorder condition.

[3] Exhibit B.

32.     After reviewing the evidence before me I have decided that the bipolar mood disorder of Ms McCormack should be assigned a rating of twenty points.  I have relied upon the report of Dr Radovic of 1 February 2010.  His report was prepared in accordance with the guidelines issued by the respondent on 4 December 2009 which required him to give a detailed description of the symptoms suffered by the patient as well as to give an assessment of the impairment under the relevant Impairment Tables.[4]  Dr Radovic prepared his report under these guidelines.  The respondent did not require Dr Radovic for cross-examination.  After Dr Radovic gave his report the respondent did not ask him to elaborate on any aspect of it.

[4] Exhibit C.

33.     In all of the circumstances, I consider that it is “fair”[5] for me to place more weight upon the report of a treating psychiatrist whose conclusions were not challenged in cross-examination rather than accept the assessments of impairment ratings by Ms Milner and Ms Walker who do not have psychiatric qualifications.  The assessments of impairment ratings by Ms Milner and Ms Walker do not refer to the impairment of cognitive functions of Ms McCormack which have been recognised by Dr Radovic.

[5] Administrative Appeals Tribunal Act 1975, s 2A.

34.     I recognise that Ms McCormack does not have some of the symptoms which are outlined in the criteria in rating 20 which refer to “frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour”. However, one criterion in rating 20 refers to a “diagnosed psychotic illness with continuing symptoms”. I find that Ms McCormack has a “diagnosed psychotic illness” being her bipolar mood disorder. I also find that there are continuing symptoms which accompany this illness: the symptoms that have been reported by Dr Radovic in his report of 20 May 2009 are unstable mood, depression, anxiety and poor cognitive function”.  In his later report of 1 February 2009 Dr Radovic referred to her “poor concentration, impaired short term memory, procrastination and difficulty in making appropriate decisions”.  I accept that Ms McCormack has a poor cognitive function which has the continuing symptoms of poor concentration and difficulty in making decisions.

35. In attributing a rating for the permanent impairment, I have also had regard to the Introduction to Schedule 1A of the Act which refers to the functional test of determining work related impairment. Certainly, the continuing symptoms of poor concentration as well as difficulty in making decisions are relevant in assessing the level of work related impairment of Ms McCormack.

36. In my view Ms McCormack satisfies s 94(1)(b) of the Act as she has an impairment which is of 20 points under Table 6 of the Impairment Tables.

ASSESSMENT OF CONTINUING INABILITY TO WORK

37. Next, I will consider whether Ms McCormack had, at the relevant time, a “continuing inability to work” as defined by s 94 of the Act.

38.     In considering the issue of whether Ms McCormack had a “continuing inability to work”, I have had regard to the job capacity assessment report of Ms Karla Milner on 6 May 2009 as well as the job capacity assessment report of Ms Pam Walker of 16 June 2009.  I accept their conclusions that Ms McCormack does have a capacity for some continued work.

39. I have to consider whether the impairment of Ms McCormack is of itself sufficient to prevent her from doing any work within the next 2 years: see s 94(1)(c)(a) of the Act. The term “work” is defined as work of at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not locally accessible by the person: see s 94(5) of the Act.

40.     There is some inconsistency in the material before me as Ms McCormack’s work capacity.  There is a notation in the material before me that refers to the assistance Ms McCormack provided to her former husband in his real estate agency for 12 hours a week.[6]  In contrast, before the Social Security Appeals Tribunal Ms McCormick stated that she worked with her former husband for only one or two hours a week.[7]  This inconsistency may be explained by the variable demands of that particular business.  Whatever be the case, I cannot be satisfied on the state of the evidence before me that at the relevant date Ms McCormack had an ability to work for at least 15 hours per week.  I think that the estimate of work capacity that was given by Ms Milner in her job capacity assessment report of 6 May 2009 of 8-14 hours per week was fair and appropriate and I have placed some reliance on her estimate of work capacity.

[6] T13, fol 66

[7] T2, fol 5.

41.     In giving evidence before me, Ms McCormack took issue with certain aspects of the job capacity assessment report of Ms Karla Milner on 6 May 2009.  Ms Milner had written that Ms McCormack had “reported being able to continue working her own property management business between 2005 & 2007”.  Ms McCormack in giving evidence before me has explained the extent to which she was involved in the property management business. Ms McCormack has stated that as a favour for a friend she had allowed herself, as the holder of a real estate agent’s licence, to be the licensee for a Brisbane property management business that was owned by that friend. This would have been because of the requirement of s 132 of the Property Agents and Motor Dealers Act 2000 (Qld) for a real estate agent who is a principal licensee to be “in charge of the agent’s business at the agent’s registered office.” Ms McCormack has stated that her main duties were to check the monthly reconciliation of the trust account. I accept the account of Ms McCormack whose evidence in this regard was not challenged in cross-examination although I myself would have thought that the statutory requirement to be “in charge” of the business would have required more supervisory duties. In any event the work at the Brisbane property management business had occurred some two years before the relevant date when her disability support pension was cancelled.

42.     Ms McCormack has also taken issue with the job capacity assessment report of Ms Pam Walker of 16 June 2009.  Ms McCormack had stated that she had been unable to attend an interview with Ms Walker as she was interstate at that time.  In her evidence that she gave before me Ms McCormack stated that there was no attempt to call her on her mobile telephone to arrange another interview.  However, Centrelink advised the Social Security Appeals Tribunal that there was an attempt to call her.  Ms McCormack advised that Tribunal that she does not answer her telephone if it is from an anonymous caller.[8]  I can infer from these requests that an attempt had been made to call her.  In the circumstances I consider that it was reasonable for Ms Walker to review the case of Ms McCormack on the available material.

[8] T2, fol 4

43.     I accept the unchallenged evidence of Ms McCormack that her condition does not allow her to work on a full-time basis and that she has a need to rest in times of stress.

44. I have to consider whether Ms McCormack is able to undertake a training activity: see s 94(2)(b) of the Act.

45.     In her evidence Ms McCormack had verified that she had advised Ms Milner that she would like to try volunteer work for some 2 or 3 days a week.  The tenor of the evidence of Ms McCormack was that she had made these remarks in a moment of optimism.  Before the Social Security Appeals Tribunal Ms McCormack had also expressed a commendable desire to do work with disabled children.

46.     I do not consider that the bipolar mood disorder condition of Ms McCormack prevents her from undertaking some educational or vocational training or on-the-job training during the next 2 years.  I have placed some weight on the opinions of Ms Milner and Ms Walker who consider that the impairment would not prevent Ms McCormack from undertaking education or training that would give her the skills to work in a less stressful employment. 

47.     In coming to my conclusion that Ms McCormack can undertake a training activity, I have had regard to the fact that Ms McCormack still has a current real estate agent’s licence.  This, to my mind, is some indication that Ms McCormack believes that she still has some capacity for work.  That fact that she has assisted in the real estate business of her former husband with book work is evidence of her capacity for work.  Ms McCormack has always endeavoured to be gainfully employed and has considerable experience in working with real estate agent trust accounts. 

48.     I have also had regard to a change in the circumstances of Ms McCormack.  She now has the support of her son who lives with her and who does the cleaning and cooking.  She was alone and responsible for her own shopping and cooking when she appeared before the Social Security Appeals Tribunal.[9]  This new development indicates that Ms McCormack will have support during any period of retraining. 

[9] T2, fol 4.

49. Having regard to the terms of s 94(2)(b), I consider that it is likely, taking into account only the impediment her impairment may place on her ability to complete that training within that period, that Ms McCormack will acquire the skills or experience necessary to be fit for the new class of work within 2 years: see Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452 per Drummond J. She is an articulate person who has a real estate agent’s licence. I accept that she avoids unpleasant encounters with customers, but her considerable experience with trust accounts qualifies her in undertaking work, such as in body corporate management. She could perform duties which do not require frequent customer contact.

50.     In coming to my conclusion that Ms McCormack is able to undertake some form of training I have also had regard to the observations of Dr Radovic who had mentioned in his report of 20 May 2010 that there was “improvement on mood stabilisers”. [10]  This report was made close to the relevant date, which is the date when I must endeavour to assess the condition of Ms McCormack. 

[10] T12, fol 56.

51. Having regard to the evidence before me, I do not consider that at the relevant time Ms McCormack has a “continuing inability to work” as defined by s 94 of the Act.

52.     In the circumstances, I consider that the correct and preferable decision is to affirm the decision under review.

53.     It was apparent to me when Ms McCormack was giving her evidence that she may not be aware of all of her social security entitlements.  It would be beneficial if Centrelink was to provide some assistance to Ms McCormack and explain to her what entitlements she has and to advise her of what training is available. 

DECISION

54.     I affirm the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .......................[Sgd]......................................................
  Kate Slack, Research Associate

Date/s of Hearing  31 March 2010
Date of Decision  15 April 2010
The Applicant was self represented
For the Respondent                  Rick McQuinlan