Morris and Secretary, Department of Social Services (Social services second review)

[2019] AATA 902

Morris and Secretary, Department of Social Services (Social services second review) [2019] AATA 902 (15 May 2019)

Division:GENERAL DIVISION

File Number(s):      2018/0588; 2018/2193

Re:Shane Morris

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:15 May 2019

Place:Sydney

The decisions under review are affirmed.

..........................[SGD]..............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – skin condition – mental health condition – traumatic brain injury – where applicant has medical conditions causing impairment – where skin condition and mental health condition fully diagnosed, fully treated and fully stabilised during the claim period – where impairments not rated at 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

15 May 2019

INTRODUCTION

1. The applicant, Mr Shane Morris, lodged two claims for disability support pension: the first claim was made on 8 November 2016 and is the subject of file number 2018/0588; and the second was made on 13 December 2017 and is the subject of file number 2018/2193.

2. The Department of Human Services (Centrelink), initially and on review, rejected both Mr Morris’ claims for disability support pension because he did not meet the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. Mr Morris applied to the Social Services and Child Support Division (SSCSD) of the Tribunal for review and, on 30 January 2018 and 5 April 2018, the SSCSD affirmed the decisions of Centrelink.

4. Mr Morris subsequently applied to the General Division of the Tribunal for review.

5. Both applications (file numbers 2018/0588 and 2018/2193) were heard by the Tribunal in Sydney on 24 April 2019. Mr Morris attended the hearing in person and provided oral evidence to the Tribunal; he did not have legal representation but was supported by a friend at the hearing.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for the disability support pension, Mr Morris must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Morris must satisfy these criteria on the date he applied for disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period). This means the claim period for application file number 2018/0588 is 8 November 2016 to 7 February 2017, and the claim period for file number 2018/2193 is 13 December 2017 to 14 March 2018.

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

14. The Secretary concedes, and the Tribunal agrees, that Mr Morris has medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim periods.

15. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim periods, Mr Morris had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue – Does Mr Morris have an impairment rating of 20 or more points under the Impairment Tables?

    Skin condition – chronic burns to the scalp and forehead

16. Mr Morris sustained a full thickness burn injury to his scalp and forehead after he fell into a fire in 2003.

17. Clinical/progress notes from Concord Hospital outlined the medical procedures to treat Mr Morris, including split skin grafting to his scalp.[1] A letter by Professor Peter Maitz (Medical Director, Burns Unit, Concord Hospital) on 12 July 2011 stated that Mr Morris’ injury exposed his scalp bone and artificial skin replacement was used to reconstruct his scalp; consequently, he is “required to wear protective head cover at all times”.[2]

    [1] Exhibit T2-T11.

    [2] Exhibit T2-T7.

18. Dr Patrick Teh has been Mr Morris’ general practitioner since 2008. In a report dated 26 January 2018, Dr Teh stated that Mr Morris suffers:

    …from recurrent wounds breakdown and infection, disfigurement, pain and anxiety. He requires several antibiotics treatment per year for his infected scalp wounds. The artificial skin graft scalp replacement breaks down recurrently causing pain and embarrassment. He wears a protective head cover at all times to protect from the sun and trauma…

    His chronic scalp wounds are prone to infection with minimal trauma, air contamination and sun exposure.[3]

    [3] Exhibit T2-T25.

19. At the Tribunal hearing, Mr Morris said that the skin on his scalp is prone to tears, infection and damage from the sun. His daughter assists him to apply dressings to his scalp daily and he always wears a bandanna to protect against possible trauma, such as a bump to his head and/or sun damage. He is only able to swim in the ocean (salt water) due to the potential risk of infection and/or his skin’s reaction to chlorine. Mr Morris also explained that he covers his scalp with a bandanna as he is embarrassed by the disfigurements on his scalp and he does not wear shorts due to a skin graft on his leg. It is clear, based on the medical reports and the oral evidence of Mr Morris, that this skin condition is long-standing and permanent.

20. Based on the medical evidence, I am satisfied that Mr Morris’ skin condition was fully diagnosed, fully treated and fully stabilised for the claim periods of both applications file number 2018/0588 and file number 2018/2193. In accordance with Table 14 – Functions of the Skin of the Impairment Tables Determination, I assign 10 points because this condition meets the criteria for a moderate functional impact on Mr Morris’ ability to perform daily activities and activities involving exposure to sunlight.

    Mental health condition

21. A report by Ms Sana Zaarour (psychologist) dated 31 May 2011 set out that Mr Morris presented with issues of depression, post-traumatic stress disorder (PTSD), low self-esteem and anxiety; and he needed “further assessment” for diagnosis.[4]

    [4] Exhibit T2-T5.

22. On 20 March 2017, Dr Teh referred Mr Morris for cognitive behaviour therapy (CBT) psychological counselling due to a “recurrent exacerbation of his depression and PTSD”.[5]

    [5] Exhibit T2-T12.

23. Reports by Ms Candice Graham (clinical psychologist) dated 7 July 2017 and 21 March 2018 stated that she saw Mr Morris on 7 July 2017 for the purpose of assessment for disability support pension. Ms Graham set out that Mr Morris presented with symptoms consistent with PTSD, major depressive disorder and anxiety; treatment included medication and counselling. Ms Graham described Mr Morris on 7 July 2017 as follows:

    [He] presents as hypervigilant, depressed and irritable. He is depressed, highly anxious and has severe difficulties in the following areas. Self-care and independent living - can struggle to get out of bed or to motivation [sic] himself to complete daily tasks. Social and recreational - [he] drives himself around however is highly anxious about social interaction so requires his children to attend shopping centres with him. Social interactions are therefore very limited given his anxiety and assault history. Interpersonal relationships - cannot establish nor maintain relationships given his anxiety, depression and limited social interaction. Concentration and task completion - his concentration level is significantly affected due to his preoccupation, anxiety and hypervigilance. He struggles to maintain conversation and only maintain attention on tasks for less than five minutes. Behaviour, planning and decision-making - his reaction time and working/short-term memory are severely affected due to his high anxiety, preoccupation, and hypervigilance. He requires instructions to be reiterated several times over a period of time for them to solidify in his memory. Work capacity - his work capacity is therefore significantly affected. I do not think that Shane has the capacity to work indefinitely.[6]

    [6] Exhibit T2-T13.

24. Mr Peter Khnana (registered psychologist) provided reports dated 18 September 2017, 23 November 2017 and 29 March 2018. Mr Khnana noted on 23 November 2017 that Mr Morris had attended ten sessions of CBT under a GP Mental Health Care Plan between 26 May 2017 and 23 November 2017.

25. After lodging his second claim for disability support pension, Mr Morris underwent cognitive assessment on 9 March 2018 by Ms Kasha Bedford (psychologist) who administered the Wechsler Adult Intelligence Scale – fourth edition (WAIS-IV) and Adaptive Behaviour Assessment System III (ABAS: III). Ms Bedford concluded that Mr Morris’ current “cognitive and adaptive abilities indicate weaknesses in specific areas, particularly with verbal comprehension, processing speed, and his overall adaptive abilities.”[7]

    [7] Exhibit T2-T31.

26. On 24 October 2018, more than seven months after the relevant claim period for Mr Morris’ second claim for disability support pension, Dr Sivaruby Thavakulasingam (consultant psychiatrist) provided a clinical opinion that Mr Morris has suffered from PTSD with significant depressive symptoms since his accident in 2003. She opined that Mr Morris’ condition:

    …is permanent, and affects his memory, concentration and attention span. This has significant impact on his functionality and his ability to study or to work. In my opinion, Mr Morris is unable to study or work as a result of his PTSD. So far, psychological intervention and medications failed to alleviate his symptoms.[8]

    [8] Exhibit A1.

27. Mr Morris told the Tribunal that he last worked in 2016 as a waterproofer; however, he stopped work due to bumping his head and subsequently sustaining infections to his scalp. He lives with and cares for his two younger daughters, now aged 15-years-old and 16-years-old. He takes responsibility for all household chores including grocery shopping, preparing meals, gardening, doing the laundry and cleaning.

28. Mr Morris receives carer payment for his youngest daughter who has special needs. He explained at the Tribunal hearing that he assists his daughter with taking medication, and drives her to and collects her from school approximately three days a week. He also helps her with homework and is required to attend her school regularly to deal with her behavioural issues.

29. Mr Morris said he does not like to go out in public alone due to fear of being “picked on” because he wears a bandanna. He travelled to the Tribunal hearing by train with the support of a friend, and confirmed that he travelled to the Gold Coast in 2016 with the support of his children, and went on a cruise in 2018 with the support of his two younger daughters.

30. While Mr Morris told the Tribunal that he becomes frustrated and has difficulties with his memory and concentration, he provided articulate oral evidence and closing submissions to the Tribunal in a hearing that lasted more than three hours.

31. Based on the medical evidence before the Tribunal, I am satisfied Mr Morris’ mental health condition was diagnosed by Ms Graham on 7 July 2017. I find that Ms Graham is a clinical psychologist and is therefore “an appropriately qualified practitioner” to provide a diagnosis of a mental health condition as required by the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination.

32. In view of the date of Ms Graham’s report, I am not satisfied that Mr Morris’ mental health condition was fully diagnosed, fully treated or fully stabilised at the date of his first claim for disability support pension made on 8 November 2016 (file number 2018/0588).

33. In relation to Mr Morris’ claim for disability support pension lodged on 13 December 2017 (file number 2018/2193), I am satisfied that his condition of mental health was fully diagnosed, fully treated and fully stabilised during the claim period. Having regard to Table 5 – Mental Health Function of the Impairment Tables Determination, I assign 5 points for this condition because the medical evidence is consistent with Mr Morris’ condition having a mild functional impact on activities involving mental health function. Although Ms Graham’s reports indicate a moderate impact in relation to travel, concentration and work/training capacity, I cannot find that most of the activities for 10 points in Table 5 are met.

    Traumatic brain injury

34. Mr Morris submitted to the Tribunal that he suffered a traumatic brain injury following his chronic burn to his scalp and forehead.

35. The only references in the medical evidence before the Tribunal to Mr Morris having a traumatic brain injury is by Mr Khnana, who noted on 18 September 2017 that “Mr Morris has not made significant progress due to his Traumatic Brain Injury (TBI) which is producing cognitive impairments as seen his [sic] Mrs Graham’s assessment”.[9]

    [9] Exhibit T2-T15.

36. There is no reference in the reports of Ms Graham, Ms Bedford or Dr Thavakulasingam that Mr Morris has sustained a traumatic brain injury, although Ms Bedford’s report does refer to Mr Morris having diminished cognitive and adaptive functioning. Furthermore, in a record of a telephone conversation between a Centrelink assessor and Dr Teh on 18 January 2018, Dr Teh indicated there is no verified brain injury from the scalp burn in 2003 and no brain MRI or neuropsychological assessment that indicate a brain injury. Dr Teh also indicated that “any cognitive impacts are attributed to his co-morbid psychological condition (rather than any brain injury)”.[10]

    [10] Exhibit T2-T23.

37. I find that there is no medical evidence to support that Mr Morris has been diagnosed with a traumatic brain injury, apart from the reference in the reports by Mr Khnana. In view of this extremely limited evidence, I cannot be satisfied this condition was diagnosed in relation to the claim periods for either of Mr Morris’ applications for disability support pension (file numbers 2018/0588 and 2018/2193).

    CONCLUSION

38. For the reasons set out above, I am satisfied that Mr Morris did not meet the requirements of paragraph 94(1)(b) of the Act during the claim periods because his impairments were not rated at 20 points or more under the Impairment Tables.

39. As I find that Mr Morris did not qualify for the disability support pension during the claim periods, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

40. The decisions under review are affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[SGD]..............................................

Associate

Dated: 15 May 2019

Date(s) of hearing:	24 April 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services