Michael McIntyre and Secretary, Department of Social Services

[2014] AATA 271

[2014] AATA 271

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3681
Re	Michael McIntyre
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	7 May 2014
Place	Sydney

The decision under review is set aside and instead the Tribunal decides that Mr McIntyre satisfies the requirements of section 94(1) of the Act.

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Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – impairment tables – impairment rating – qualification for DSP – continuing inability to work – whether severe impairment – whether required to participate in a program of support – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2

REASONS FOR DECISION

Ms N Bell, Senior Member

7 May 2014

1. Mr McIntyre suffers from a range of medical conditions. He claimed disability support pension in October 2011. He last worked in 1999.

2. A Centrelink officer rejected Mr McIntyre’s claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. This decision was affirmed on further internal review by an authorised review officer and the Social Security Appeals Tribunal.

3. I note that Mr McIntyre is now in receipt of disability support pension following a decision to grant the pension for a further claim on 16 August 2013, backdated to 17 May 2013 following the Secretary’s own motion decision pursuant to section 12 of the Social Security (Administration) Act 1999.

4. Mr McIntyre suffers from:

   (a)Depression andpost-traumatic stress disorder;

   (b)osteoarthritis of the hips; and

   (c)coronary artery disease.

   ISSUES

5. Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s combined impairment is of 20 points or more under the impairment tables; and

   (c)the person has a continuing inability to work; and

   (d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.

6. The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr McIntyre during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 10 October 2011 to 9 January 2012.

7. It is not in dispute that Mr McIntyre has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in this application.

   DO MR MCINTYRE’S CONDITIONS ATTRACT AN IMPAIRMENT RATING OF 20 POINTS OR MORE?

8. I will deal with each of Mr McIntyre’s conditions in turn. I note that for a condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 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 two years.

9. Paragraph 6 of the Introduction provides that when considering whether a condition is fully diagnosed, treated and stabilised, one must consider:

   What treatment or rehabilitation has occurred;

   Whether treatment is still continuing or is planned in the near future;

   Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

   Depression and Post-traumatic stress disorder

10. Mr McIntyre was diagnosed with post traumatic stress disorder and depression after his eleven year old son was murdered by his son’s stepfather more than 20 years ago. Mr McIntyre was required to identify his son’s body. The child had been stabbed repeatedly.

11. There is now no dispute that Mr McIntyre’s PTSD and depression were, during the relevant period, fully diagnosed, treated and stabilised within the meaning of the Introduction to the Tables.

12. A rating of ten under Table 6 for ‘Psychiatric Impairment’ requires:

    TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).

13. A rating of twenty under that Table requires:

    TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

14. The Secretary contends that Mr McIntyre attracts a rating of 10 under Table 6. The Secretary relies on the assessments of various job capacity assessors and the report of Ms Jan Stillman of the Department’s Health Professional Advisory Unit, together with the clinical notes of Ms Chen of the Westmead Hospital Anxiety and PTSD clinic.

15. Mr McIntyre’s general practitioner, Dr Choy, spoke to the Tribunal about Mr McIntyre’s psychiatric condition. He confirmed his assessment of July 2013 of a 20 point impairment under Table 6. When asked by the Tribunal what his assessment would be of Mr McIntyre’s impairment in the relevant period following Mr McIntyre’s claim in October 2011, he noted that he had commenced to treat Mr McIntyre in June 2011 and that Mr McIntyre had been a patient of the practice in which Dr Choy works since 2003. Dr Choy said that Mr McIntyre’s notes indicate a diagnosis of PTSD as far back as 2006 and note that he presented with “a lot of tension and anxiety” at that time. He said there is mention in the notes of sleep disturbance with flashbacks requiring referral to the Black Dog Institute in 2008, a lot of tension and anxiety in relation to PTSD and its taking a toll on Mr McIntyre. Dr Choy said that on the basis of this information and his treatment of Mr McIntyre since June 2011 his condition would have attracted an impairment rating of 20 points during the relevant period because his condition would have been similar to the condition he described in his report of 18 July 2013.

16. Dr Choy considered that, at the relevant time, Mr McIntyre required assessment and possibly treatment by a psychiatrist and that is why he referred him to Dr Morgan. I note that Dr Morgan also suggested referral to a psychiatrist or to psychological services. Dr Morgan also considered that Mr McIntyre had significant interference with interpersonal and workplace relationships and serious disruption of work attendance and ability to work. Dr Choy said that the main reason why he considered 20 point impairment rating to be the most appropriate for Mr McIntyre was his frequent severe panic and anxiety attacks as reported to him by Mr McIntyre and as recorded in the clinical notes of others in his practice who had treated Mr McIntyre.

17. In Dr Choy’s report of 18 July 2013 he said of Mr McIntyre’s psychiatric condition:

    Onset after murder of son by his then stepfather 20 years ago. Recurrent and persistent symptoms since then.

    Symptoms include depressed mood, low motivation, anxiety, panic episodes, nightmares, flashbacks of moderate severity, fluctuates and worse during anniversaries of son’s birthday, date of murder, Christmas and holidays.

    [T]he impairment is likely to persist for more than 2 years

    Over the years Mr McIntyre has been assessed and treated by psychiatrist and psychologist.

    Most recently he was assessed by the Westmead hospital Anxiety/PTSD clinic, as referred by a Psychiatrist Dr Hugh [M]organ from the CADE clinic at St [L]eonards.

    Counselling and cognitive therapy and antidepressant/antianxiety [sic] medications may improve this condition.

    My assessment under the Impairment table … as was provided is a rating of 20(twenty)

18. Dr Choy was not dissuaded from this view by Mr McIntyre having travelled regularly to the central coast to visit his daughter and grandchildren, although the Secretary sought to make much of this, as is evidenced by its request of Ms Chen, clinical psychologist, at the Westmead Clinic. The Secretary sought to present the fact of Mr McIntyre’s visits to his daughter and her children as a formal child minding arrangement, indicative of a level of wellness sufficient to be responsible for the care of young children. Mr McIntyre’s evidence was that his grandchildren were never solely in his care. He said he was simply there with his daughter and grandchildren, approximately once per fortnight, providing some back up for his daughter and spending time with his grandchildren. He said he was never alone with the children as their carer. I accept his evidence.

19. Nor was Dr Choy dissuaded by from his assessment by being referred to the clinical notes of Ms Chen which, proceeding on the diagnosis of PTSD and depression, noted, variously, Mr McIntyre’s mood and affect, appearance, speech, thought form, contact with family and a circle of friends, absence of suicidal ideation, perception, cognition, intellectual functioning, insight and judgement and found Mr McIntyre to be within the normal limits of functioning in relation to each. Dr Choy considered that none of these related to Mr McIntyre’s main symptom of severe frequent anxiety attacks. Dr Choy said that had he received a history of some other serious symptomatology, such as psychosis or anti-social behaviour, then Ms Chen’s findings would be relevant to his assessment. Dr Choy said the presence in Mr McIntyre of insight and judgement merely meant that he did not attract an impairment rating of 30 or 40 points under the Table.

20. In any event, I note the following from Ms Chen’s letters dated 12 July 2012 and 22 March 2013 in which she writes:

    He reported a long history of PTSD symptoms and recurrent depression in response to the murder of his son … in 1991. [His son] (aged 11 at the time) was stabbed to death by the estranged husband of Michael’s first wife. Michael reported flashbacks of seeing [his son’s] body in the hospital, emotional distress and physical responses to internal/external reminders of [his son’s] death. The PTSD and depression symptoms have worsened over 2011 against a number of stressors, including seeing the media coverage of [another boy’s] murder over the period of July-September [2011], a heart attack in September [2011], and the 20^th anniversary of [his son’] death [in October 2011].

21. This indicates Ms Chen had an appreciation of Mr McIntyre’s emotional and physical responses to internal and external reminders of his son’s death – his panic attacks – as well as recording the absence of indications of other serious symptomatology.

22. The Secretary relied on the assessment made by Ms Jill Stillman, a Registered Nurse, of the Department of Human Services’ Health Professional Advisory Unit, a unit whose role is to advise officers of the Department on, among other things, persons’ eligibility for disability support pension. Ms Stillman stated in her report of 12 September 2013 that Mr McIntyre’s PTSD should be considered fully diagnosed, treated and stabilised in the relevant period. However, Ms Stillman said that Mr McIntyre does not and did not have, in his PTSD, a serious illness with serious symptomatology and so he should attract an impairment rating of only 10% for this condition. Ms Stillman said that during the relevant period Mr McIntyre was experiencing an exacerbation of his PTSD symptoms because of his recent cardiac event and because of “major life events” by which she meant the a recent anniversary of his son’s murder, a recent report of the murder of another child and the approach of Christmas. This view – that there had been an exacerbation – was echoed by Ms Chen as above and confirmed by Dr Choy in his evidence to the Tribunal.

23. In oral evidence, Ms Stillman said she considered, in her assessment, that Mr McIntyre’s visits to his daughter and grandchildren “in my considered assessment relate more to a 10 % impairment rating than a 20 % impairment rating”. After being referred to the clinical notes of Ms Chen, as discussed above, Ms Stillman said: “After reviewing the documentation under the Mental Health Examination that supported my considered assessment that during the DSP claim period or in reference to the DSP claim period that 10 impairment points was a more appropriate rating than 20”. These are not matters relevant to the terms of Table 6. None of the serious symptomatology noted in the Table would necessarily preclude contact with family and, in the absence of any assertion of significant symptomatology in addition to frequent severe panic attacks, the specific aspects of Ms Chen’s notes relied on by Ms Stillman are irrelevant.

24. Ms Stillman said she had never met or spoken to Mr McIntyre. She said she did speak on the telephone to Dr Choy. Her report of 8 April 2013 merely notes Dr Choy’s advice of referrals made and the fact that Mr McIntyre was on a waiting list for treatment, having been assessed by Dr Morgan as having PTSD and depression, moderately severe. No record appears concerning Dr Choy’s assessment of Mr McIntyre. Ms Stillman said she also spoke on the phone to Ms Chen. The report of the same date notes information obtained from Ms Chen as to a range of matters concerning proposed treatment schedules but does not canvass her assessment of Mr McIntyre. Ms Stillman said she did not speak to Dr Morgan.

25. Ms Stillman made much of a view that Mr McIntyre’s PTSD and depression had been exacerbated by his concerns about his heart condition and by recent customary “trigger” events, such as the anniversary of Mr McIntyre’s son’s death, the approach of Christmas and media reports of the death of another child. In the face of Dr Choy’s evidence of Mr McIntyre’s longstanding panic and anxiety attacks, I am unsure of the significance of an exacerbation of this kind. In any event, all appear to be in agreement that it was not only Mr McIntyre’s heart condition that increased his symptoms, but also triggers of a kind that regularly serve to exacerbate his symptoms because they relate directly to the trauma the effects of which he continues to suffer. These triggers are bound up with his condition and they have played a regular, frequent and exacerbating role in the course of his symptoms since he first suffered the trauma of his son’s murder. No expert has teased out the proportionate contribution of, on the one hand, Mr McIntyre’s heart condition, and, on the other hand, the triggers bound up with his PTSD. To attempt to do so may well be impossible. Mr McIntyre’s evidence was that his panic attacks are a daily occurrence but they range in severity, with approximately 50% being severe. He said their severity follows a predictable pattern in that they are at their worst at and around Christmas, his son’s birthday, Easter, the anniversary of his death, and whenever there is any news item about the death of a child or other reminder of his son’s terrible death. He said he has regularly woken in a panicked flashback at 2.00 am, the time of his son’s murder, for the past five years. Mr McIntyre said that in the time leading up to the 20^th anniversary of his son’s death in October 1991 his panic attacks were extremely severe. This is supported by the evidence of Dr Choy.

26. It is non-sensical to regard increases in symptoms arising from established, regular and predictable flashbacks in PTSD as outside the assessment of the severity of symptomatology. Rather, they are a feature of the disease; they are symptoms themselves. In any event, these symptoms, including frequent severe panic attacks, were in place well before Mr McIntyre’s heart attack in September 2011, according to Dr Choy. It may be that the added stress of a heart attack increased Mr McIntyre’s symptoms for some time, but on his evidence and on the opinion of Dr Choy, his symptoms were already of a type and at a severity to properly attract an impairment rating of 20 points within the terms of Table 6.

27. I prefer the assessment of Dr Choy, Mr McIntyre’s treating general practitioner since July 2011. I note also, in this respect, that Ms Chen had therapeutic contact with Mr McIntyre on only a few occasions – once by telephone and once or twice in person – and does not appear to have made any assessment under the Tables. In any event, her reports are not inconsistent with the opinion and assessment of Dr Choy. I consider that Mr McIntyre’s PTSD and depression attract an impairment rating of 20 points.

    Osteoarthritis of the hips

28. The report of Dr Andrew Ellis, dated 24 July 2013, makes it clear that, for Mr McIntyre’s serious hip osteoarthritis, further investigations and possible hip replacement are planned after further consultation with Mr McIntyre’s cardiologist.

29. This condition could not be said to have been fully treated and stabilised during the relevant period. It follows that it cannot be assessed under the tables and cannot attract an impairment rating.

    Coronary artery disease

30. During the relevant period Mr McIntyre was still undergoing medical assessment and treatment for his coronary artery disease following his heart attack in September 2011.

31. There is no basis on which it could be said that this condition was fully diagnosed, treated and stabilised. It follows that it cannot be assessed under the tables and cannot attract an impairment rating.

32. The total impairment rating under the Tables is 20 points. Therefore, Mr McIntyre satisfies the requirements of section 94(1)(b) of the Act.

    DOES MR MCINTRYE HAVE A CONTINUING INABILITY TO WORK?

33. Section 94(2) of the Act defines “continuing inability to work” as follows:

    94 (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

    (a) in all cases—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) in all cases—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.

    Note: For work see subsection (5).

    …

    (5) In this section:

    …

    work means work:

    (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b) that exists in Australia, even if not within the person’s locally accessible labour market.

1. There is no dispute that Mr McIntyre has participated in a program of support to the required degree and therefore satisfies the requirements of subsection 94(2)(aa). In any event, having found that his psychiatric condition, by assessment at twenty points, is a ‘severe impairment’ pursuant to section 94(3B) of the Act, he is not required to have completed a program of support.

2. Mr McIntyre described the difficulties he had when he last worked. He found that even leaving his high pressure newspaper job and joining a small family owned business did not help him with his irritability, inability to concentrate and general inability to function. I have detailed above Mr McIntyre’s evidence about his frequent severe panic attacks and the daily occurrence of panic attacks of some degree of severity.

3. Mr McIntyre’s capacity for work has been assessed by a total of four job capacity assessors. Only the first three followed face-to face assessment. The first job capacity report, by Jayde Schmutter, Registered Psychologist, on 11 November 2011 assessed Mr McIntyre’s future work capacity to be 15 to 22 hours per week with intervention and found Mr McIntyre’s then current baseline work capacity to be 8 to 14 hours per week. At the time he had a temporary reduced work capacity of 0 to 7 hours per week due to exacerbation of his medical conditions.

4. The second assessment in August 2012 by “Sarah”, Registered Psychologist, was similar to the first assessment of Ms Schmutter. She assessed Mr McIntyre’s then current baseline work capacity to be 8 to 14 hours per week and any future capacity with medical and employment intervention and job seeking assistance to increase 15 to 22 hours per week. Suitable work included light semi-skilled including clerical work. At that time, Mr McIntyre had a temporary reduced work capacity of 0 to 7 hours per week due to an exacerbation of his cardiac conditions.

5. The third assessment dated 11 March 2013, by Lucy Donnelly, Registered Occupation Therapist, was assessed on the papers only. She concluded that Mr McIntyre had a baseline work capacity of 8 to 14 hours per week and assessed suitable work to be light semi-skilled including clerical or administration work. She wrote that the “combined symptoms of Mr McIntyre’s permanent medical conditions are functionally limiting and in a workplace setting he could be expected to display limited endurance, physical abilities, confidence, concentration and reliability which may lead to performance below expected industry standards…”. She assessed that future work capacity with “the appropriate medical interventions” will increase to 15 to 22 hours per week. At the time, Mr McIntyre had a temporary work capacity of 0 to 7 hours per week.

6. The fourth assessment by “Amy”, Registered Psychologist, dated 1 July 2013 made an identical assessment to that of Ms Donnelly in March 2013.

7. Three of these assessments were made on the basis of Mr McIntyre having an untreated and unstabilised psychiatric condition. Expert opinion from the Department’s advisers is now that during the relevant period Mr McIntyre’s PTSD and depression were fully diagnosed, treated and stabilised. The last assessment assessed him as having a moderate psychiatric impairment, attracting 10 points. The job capacity assessors’ opinions as to Mr McIntyre’s ability to work or train so as to make him able to work were based on premises which can no longer apply. For this reason I reject their assessments as to Mr McIntyre’s continuing ability to work.

8. I consider that Mr McIntyre’s psychiatric condition, particularly his frequent severe panic attacks, would of itself prevent him from working for at least 15 hours per week. Panic attacks, while they may follow some pattern of response to known triggers, are essentially unpredictable and Mr McIntyre’s evidence was that they come on suddenly and he must quickly remove himself from whatever situation he is in. I have no evidence of the extent to which Mr McIntyre has undertaken or is able to undertake training. However, I do not consider that he would be able to sustain employment for 15 hours per week, no matter how well trained for employment. Given the long history of this condition, and its unpredictable and debilitating effects on him, I see no indication of improvement in the two years following the date of his claim. Indeed, given the length of time it has taken to progress with this gruelling application, that has been born out and, as at November 2013, when evidence was last taken in this matter, there was no evidence of Mr McIntyre having either returned to work, undertaken training to do so or of his psychiatric condition having improved.

9. It follows that Mr McIntyre has a continuing inability to work within the meaning of section 94(1)(c)(i) of the Act.

   DECISION

10. The decision under review is set aside and instead the Tribunal decides that Mr McIntyre satisfies the requirements of section 94(1) of the Act.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

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Associate

Dated 7 May 2014

Date(s) of hearing	5 August, 11 November 2013 and 7 March 2014
Applicant	In person
Solicitors for the Respondent	S Thompson, Sparke Helmore