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

[2008] AATA 441

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 441

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/137

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PHYLLIS MARY MUSCAT

Applicant

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

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date28 May 2008

PlaceHobart

Decision The Tribunal sets aside the decision under review and substitutes it with a decision that Mrs Muscat is entitled to DSP from 3 March 2004.

(Sgd) Ms A F Cunningham

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – overseas applicant – continuing inability to work – diagnosis of chronic mixed anxiety and depressive disorder – whether applicant unable to work because of responsibilities in caring for her husband or due to her medical condition – decision under review set aside and replaced with a decision that applicant entitled to disability support pension

Social Security Act 1991 (Cth), ss 94(2)(a), 94(1)(a)(b)(c)

Social Security (In Social Security (Administration) Act 1999

Social Security (Administration) Act 1999

REASONS FOR DECISION

28 May 2008 Ms A F Cunningham (Senior Member)   

1.      On the 6 October 2005 a decision was made rejecting the applicant’s claim for disability support pension (DSP).  This decision was affirmed by the Social Security Appeals Tribunal on 10 August 2006.  The applicant, Phyllis Muscat has appealed the decision contending that she satisfies the qualification requirements of the applicable legislation.

2.      The hearing was conducted by telephone link to Malta.  Oral evidence was given by the applicant, Mrs Muscat, Dr David Cassar, treating physchiatrist and Dr Michael J Refalo, general practitioner.

background facts

3.      The following relevant facts were not in dispute:

(i)        Mrs Muscat is an Australian citizen is aged 45 years and currently residing in Malta.  Mrs Muscat left Australia for Malta in June 1997.

(ii)       Mrs Muscat last worked in a full-time capacity in August 2003 at which time she was employed as a machine operator at a factory in Malta.

(iii)      Mrs Muscat’s husband suffers from depression and is in receipt of an invalid pension.

(iv) On 3 March 2004 Mrs Muscat lodged a claim for a disability support pension through the Maltese authorities. The claim was rejected by Centrelink on 6 October 2005 on the basis that Mrs Muscat did not meet the qualification requirements in the Act. The decision was subsequently affirmed by an Authorised Review Officer and by a decision of the Social Security Appeals Tribunal (SSAT) on 10 August 2006. The SSAT found that Mrs Muscat suffers from chronic mixed anxiety and depressive disorder which only attracted an impairment rating of 10 points and not the 20 points required for eligibility.

legislation

4.      The applicable legislation is the Social Security Act 1991 (Cth) (the Act) and in particular section 94 with respect to qualification for DSP.  Also relevant are the Social Security (International Agreements) Act 1999 (the International Agreements Act), the Tables for assessment of work related impairment for DSP found in Schedule 1 (b), and the Social Security (Administration) Act 1999 (the Administration Act).

5.      There is an International Agreement between Malta and Australia (Schedule 6 to the International Agreements Act). Article 5 provides that a person who would otherwise be qualified for an Australian social security payment and who is a resident in Malta is deemed to be an Australian resident and in Australia for the purposes of the Administration Act. As the applicant lodged a claim in the approved form on 3 March 2004 with the Maltese Authority, under the Agreement she was taken to be an Australia resident and in Australia.

6.      Mrs Muscat’s claim was rejected on the basis that she failed to satisfy the provisions of Section 94 (1)(b) and Section 94(1)(c) of the Act. It is conceded by the Secretary that Mrs Muscat satisfies the provisions of sub-sections (d) and (e).

7.      It was accepted by both parties, that the Administration Act requires that a person be qualified to receive the pension at the date of the claim or within thirteen weeks. Accordingly the issue for the Tribunal is whether Mrs Muscat was qualified to receive DSP during the period 3 March 2004 to 1 June 2004 (the claim period).

8.      Section 94 sub-section 1(a) and (b) provide:

“(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…”

9.      There was no dispute that Mrs Muscat meets the qualifying provisions of Section 94 1(a) in that she has a psychiatric impairment.  Sub-section (b) requires that the impairment has a rating of 20 points or more under the Impairment Tables.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised as provided for in the Introduction to the Impairment Tables.  Further, the condition must be considered to be permanent that is, having been diagnosed, treated and stabilised it is more likely that not that it will persist for the foreseeable future, meaning that it will last for more than two years.

10. It was conceded on behalf of the Secretary that Mrs Muscat’s psychiatric impairment is a permanent condition which attracts an impairment rating of 10 points under Table 6 and did so at the date of the claim. Accordingly the issues for the Tribunal to determine are firstly, whether Mrs Muscat’s condition attracts an impairment rating of 20 points or more and secondly, whether she had a continuing inability to work during the claim period as required by Section 94 (1)(c) of the Act which provides:

“…(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…”

11.     Sub-sections 94 (2)(a) & (b)(i) & (ii) provide:

“(2)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…”

For the relevant period the legislative definition of “work” as provided for in Section 94(5) is for at least thirty hours per week.  The legislation has since been amended from thirty to fifteen hours per week.

12.     The relevant Impairment Table for permanent psychiatric disorders is Table 6.

13.     The criteria for a rating of 10 are as follows:

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.  (e.g.  short periods of absence from work).

14.     The criteria for a rating of 20 are as follows:

Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (e.g. 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.

evidence

15.     In her proof of evidence tendered at the hearing Mrs Muscat stated in paragraph 3 “I left my place of employment in August 2003 to care full-time for my husband who was suffering from depression.  He continues to suffer from depression.  I was diagnosed with depression and anxiety on 28 January 2004”.

16.     In her evidence to the Tribunal in answer to a question as to why she had stopped working, Mrs Muscat said that she was not feeling well, she was nervous, tired and “didn’t want to see people”.

17.     It is the Secretary’s contention that the evidence supports a finding that Mrs Muscat gave up her employment as a machine operator in order to care for her husband who was suffering from depression and not because of her own psychiatric condition.

18.     It was Dr Refalo’s evidence that he has been treating Mrs Muscat for a number of years.  Dr Refalo stated in his proof of evidence “Starting in 2002, Phyllis was suffering from various unclear complaints which I suspected to be a possible reaction to her husband’s disability and his dependence on her.  Phyllis then started not going to work and became more withdrawn and avoided social activities.  The situation worsened for Phyllis and she started not coping at work and had to be ‘boarded out’.  Phyllis then started neglecting herself and her housework and became even more withdrawn.  By January 2004, Phyllis was not improving and she was repeatedly seen by Psychiatrist Dr David Cassar.”

19.     It was Dr Refalo’s evidence that he expected the medication to work within a period of fifteen days and that he had decided to refer Mrs Muscat to Dr Cassar when the medication failed to assist after a period of about a month.

20.     In his oral evidence to the Tribunal Dr Refalo said that Mrs Muscat was having problems at work in the nature of her interpersonal relationships with persons in the workforce and that she was not coping despite the prescribed medication.  Dr Refalo said that he had prescribed medication prior to referring Mrs Muscat to Dr Cassar.  The medication was prescribed in order to control Mrs Muscat’s anxiety, her feelings of being unable to cope, inability to sleep and problems that she was having with her husband.  Dr Refalo recalled treating Mrs Muscat in around August 2003 when she told him that she was not able to cope with having to go to work and having people in the house caring for her husband.

21.     It was Dr Refalo’s opinion that Mrs Muscat’s condition had not improved since 2004 and that on the basis of the material contained in Dr Cassar’s letters he had assessed her impairment at 30 points in around March 2004.

22.     Mrs Muscat first saw Dr Cassar approximately six months after she had terminated her employment.  In his oral evidence to the Tribunal he said that she was suffering from a “very mild form of anxiety and depression.”

23.     It was Dr Cassar’s evidence that when he first saw Mrs Muscat in 2004 her impairment rating would have been 20 points due to her poor level of functioning.  Whilst Dr Cassar considers that Mrs Muscat’s symptoms have increased over the period from when he first saw her, he said that her functioning level has remained much the same.  Although Dr Cassar has not been concerned regarding any suicidal ideation, she has required his ongoing care and he currently sees her every one to two months on average.

24.     In answer to questions from Mr Sparkes, Dr Cassar recalled that his first consultation lasted approximately three quarters of an hour and that he had then diagnosed chronic anxiety on the basis of her symptom presentation and her history.  Dr Cassar further stated that he would not be surprised if Mrs Muscat gave up work in order to care for her husband, but suggested that the burden of care and stress occasioned with caring for her husband may have contributed to her vulnerability with respect to her own condition.

25.     Dr Cassar noted that whilst Mrs Muscat has been able to maintain a form of relationship with close relatives, for example her sister-in-law who supports her, she has considerable problems relating to people in general.  He said that these symptoms were present when he first saw Mrs Muscat in January 2004.  Dr Cassar referred to severe anxiety attacks suffered by Mrs Muscat when under stress which had occurred on a fortnightly basis.

26.     On 28 January 2004 Dr Cassar certified that Mrs Muscat was suffering from a chronic mixed anxiety and depressive disorder and that he considered her totally unfit for gainful employment in the long term.

27.     On 27 October 2004 Dr Cassar completed a TDR Overseas Medical Report with respect to Mrs Muscat’s application for DSP.  Dr Cassar described her current symptoms as “chronically fatigued, tense and anxious, unable to cope at work.  Irritable and intolerant of company, loses emotional control and also physical control, forgetful with poor concentration …”

28.     The Report indicates that treatment started in January 2004 and that Dr Cassar was only partially responsible for such treatment.  Dr Cassar reported that in his opinion the impact of Mrs Muscat’s condition on her ability to function was expected to persist for more than twenty-four months and that he did not expect any change within this period.

29.     Mrs Muscat was assessed by the Maltese Medical Board in June 2004.  A copy of the Medical Assessment Report signed by three medical practitioners was contained in the T-documents at T5.  These doctors described the nature of Mrs Muscat’s psychiatric condition as “chronic schizophrenia paranoid features”.  This diagnosis has been rejected by other medical practitioners.  Mr Sparkes submitted that the Tribunal should ignore this report because it was inconsistent with the other medical evidence and could even relate to a different patient.

30.     In other respects the report details are consistent with the  evidence presented at the hearing namely:  that she is always tired and avoids going outdoors, that she is on treatment which Mrs Muscat contends is not producing any results and that she is not suitable for any work.  The report was signed by Mrs Muscat and is dated 30 June 2004.

31.     Included in the T-documents were two reports from Dr Wnekowski of Health Services Australia Limited.  The first report is dated 19 September 2005 with a subsequent report prepared on 30 January 2006.  Dr Wnekowski’s report was based on  file information including doctor’s reports from Malta.  Dr Wnekowski did not see or examine Mrs Muscat.

32.     In her first report Dr Wnekowski assesses that Mrs Muscat is “fit for 30 hours in an unskilled position with low stress tasks, and no complex decision making”.  Dr Wnekowski notes that her medical condition appears to be stabilised and that she has ongoing stress caring for her husband.  She does not consider this to be an impairment for all work and assigns an impairment rating of 10 points in Table 6.  With reference to the report prepared by the Maltese Medical Panel, Dr Wnekowski discounts the report due to the major discrepancy in the diagnosis of schizophrenia.

33.     In her subsequent report Dr Wnekowski again notes the absence of a mental state examination to support the claims of incapacity.  Dr Wnekowski refers to a letter from Dr Cassar, dated 19 October 2005 in which he states that Mrs Muscat’s concentration is poor, she is very tense, requires emotional support from others, is intolerant of others and avoids meeting people.  Her condition is said to be perpetuated by her husband’s psychiatric disorder.  On the basis of no new information, Dr Wnekowski confirms her impairment rating of 10 points.

findings

34.     The operative provisions of the Administration Act as contained in Division 3 and Part 2 clause 4 require that a person must qualify at the date of their claim or within thirteen weeks.  There are no medical reports regarding Mrs Muscat’s condition that were written within the claim period that is, 3 March 2004 to 1 June 2004.  The reports that approximate this time are those of the Maltese Medical Panel of 30 June 2004 (T5) and Dr Cassar dated 27 October 2004 (T6).  Dr Cassar notes that Mrs Muscat’s condition of chronic mixed anxiety and depressive disorder was confirmed on 28 January 2004 but that she had been suffering the symptoms for the previous two years.  Dr Cassar reported that Mrs Muscat had started treatment in January 2004 and that her condition was expected to last for more than twenty-four months, remain unchanged and deteriorate.  Dr Cassar also indicated that Mrs Muscat’s current capacity to do any work with educational training, vocational training or on the job training is between zero and seven hours per week and that this would remain the situation for more than twenty-four  months.

35.     In a Customer Work Capacity form which Mrs Muscat completed with Dr Cassar’s assistance in October 2004, Mrs Muscat indicated that she has ongoing difficulty interacting with others, maintaining appropriate behaviour, coping with work-related stress or pressures, memory and concentration, understanding and following instructions, undertaking more than one task  and some difficulty looking after her personal care and needs and completing tasks.

36.     Whilst none of the medical reports specifically referred to Mrs Muscat’s psychiatric condition during the claim period, the Tribunal had the benefit of oral evidence from Dr Cassar and Dr Refalo as well as the applicant herself.  All of the witnesses were asked questions concerning Mrs Muscat’s psychiatric condition during the claim period.

37.     It was Dr Cassar’s evidence that during his first consultation with Mrs Muscat in January 2004 he diagnosed her with chronic anxiety and that her condition and functioning level is little changed from when he first saw her.  He stated that Mrs Muscat has a considerable impairment with persistent symptoms which increase with the slightest degree of stress.  He assessed her impairment at 20 points under Table 6 and confirmed that this rating would not have changed since his initial consultations.

38.     Dr Refalo recalled that Mrs Muscat was experiencing problems with her husband’s dependence due to his illness from around 2002, that she then started neglecting herself and the housework and reduced her social contacts.  Dr Refalo said that Mrs Muscat was not coping at home or at work and had particular difficulty with social and workplace interactions.  As her symptoms deteriorated he commenced anti-depressant medication and referred her to Dr Cassar when the medication ceased to have any benefit.

39.     It was Dr Refalo’s evidence that Mrs Muscat was unable to cope at work or relationships with others despite her medication.  He had assessed her impairment rating at 30 points, but under cross-examination agreed that this rating may be “a bit generous”.  He did not believe that her condition had worsened or improved over the intervening years.

40.     In the Tribunal’s view  the criteria for a 10 point impairment rating seem to best match the symptoms that Dr Refalo observed in Mrs Muscat when she first appeared to be suffering from “various unclear complaints” in 2002.  This was when she became more withdrawn and started avoiding work and social activities.  Her symptoms could then be described as moderate and regular with some difficulty in general functioning that is, a reduction in social contacts and interference with interpersonal and workplace relationships.  By the time Mrs Muscat resigned from her full-time work, Dr Refalo observed that she was not coping either at home or at work and had particular difficulty with workplace and social interaction.  On this basis Mrs Muscat would satisfy the criteria that “there is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.”

41.     Mrs Muscat resigned from her employment in August 2003.  Her claim for DSP was made on 3 March 2004.  In January 2004 she was diagnosed by Dr Cassar with chronic anxiety disorder.  This was approximately five weeks prior to the commencement of the claim period.  Mrs Muscat accordingly satisfies the criteria of having a psychiatric illness which requires treatment by a psychiatrist.  There was evidence that she was experiencing regular anxiety attacks, initially every two weeks.  The difficulties that Mrs Muscat was having with interpersonal relationships other than close family members are consistent with serious anti-social behaviour.

42. Apart from Dr Wnekowski’s report, all of the evidence supports a finding that Mrs Muscat had a continuing inability to work within the meaning of the Act. Dr Cassar opined on 27 October 2004 that she would only be able to work for up to seven hours per week which is well below the legislative threshold in s94(5) of thirty hours per week.

43.     In her report Dr Wnekowski discounted the report of the Maltese Medical Panel and the Tribunal agrees that little weight should be placed on the contents of this report due to the diagnosis of schizophrenia for which there is no material in support and which is disputed by Mrs Muscat’s treating doctors.  The Tribunal was advised that the Board does not have access to the Impairment Tables or the legislation relating to DSP qualification.  Where the contents of Dr Wnekowski’s medical report differ from the evidence of Mrs Muscat’s treating doctors, the Tribunal prefers their evidence.  Dr Cassar and Dr Refalo have both been providing medical treatment for the applicant on a regular basis for a number of years.  They have been in a position to observe her symptoms, record her history and monitor her progress.  It is clear that these doctors have had access to the Impairment Tables and have considered Mrs Muscat’s symptoms at the relevant time, namely during the claim period in accordance with the criteria as set out in Table 6.  Dr Wnekowski’s assessment was based purely on information provided rather than a personal assessment or consultation with Mrs Muscat.  Nor did Dr Wnekowski have the benefit of the additional evidence provided to the Tribunal at the hearing of the appeal.

44.     It was argued on behalf of the Secretary that the evidence supports a finding that Mrs Muscat gave up her work solely to care for her husband and not because of her own psychiatric condition.  The Tribunal rejects this submission and considers that there is ample evidence that Mrs Muscat was not coping at the time when she decided to cease work.  She was not coping at home in that she was neglecting herself and her housework.  She avoided social and workplace interaction and was staying away from work.  As Dr Cassar stated, Mrs Muscat’s inability to cope both at home and at work and the need to care for her husband are interwoven issues which cannot be separated one from the other.  Her need to care for her husband and the issues she confronted with his deteriorating health simply made her vulnerable and less able to cope, Dr Cassar stated.

45.     It is clear in the Tribunal’s view that by March 2004 Mrs Muscat’s impairment was of itself sufficient to prevent her from doing any work certainly of up to thirty hours per week, nor would she have been able to work within the next two years.

46.     The Tribunal is satisfied that the evidence supports a finding that as at the date of her claim Mrs Muscat was suffering a psychiatric impairment which was a permanent condition and attracted an impairment rating of 20 points under Table 6.  Further, that from the date of her claim and for at least the following two years, she had a continuing inability to work.

47.     The Tribunal accordingly determines to set aside the decision under review and substitute it with a decision that Mrs Muscat is entitled to DSP from 3 March 2004.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of Ms A F Cunningham (Senior Member)

Signed:  H Healy (Administrative Assistant)

Date/s of Hearing        17 March 2008 & 18 April 2008
Date of Decision        28 May 2008

Solicitor for the Applicant               Mr Ben Bartl & Mr James Penny, Hobart Community Legal Centre

Solicitor for the Respondent   Mr Brian Sparkes, Centrelink Legal Services