Nikolovski and Secretary, Department of Social Services (Social services second review)
[2015] AATA 809
•20 October 2015
Nikolovski and Secretary, Department of Social Services (Social services second review) [2015] AATA 809 (20 October 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1457
Re
Peter Nikolovski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 20 October 2015 Place Sydney The decision under review is set aside and in substitution a decision is made that during the claim period Mr Nikolovski satisfied the requirements of s 94(1) of the Social SecurityAct 1991 and did qualify for Disability Support Pension.
.....................[sgd]...................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - spinal condition - upper limb decision - mental health condition - whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment rated 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work - whether applicant had a severe impairment under one Impairment Table - decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
NSW Motor Accidents Authority Permanent Impairment Guidelines - Guidelines for assessment of permanent impairment of a person injured as a result of a motor vehicle accident: Chapter 7 Mental health and behavioural disorders impairment, 1 October 2007
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
20 October 2015
BACKGROUND
In 2007, Mr Nikolovski, who is now 41 years old, was involved in a motor vehicle accident (MVA) and since that time has experienced significant physical and psychological symptoms which have prevented him from engaging in employment.
On 6 December 2011 he was granted Disability Support Pension (“DSP”). However, due to a compensation preclusion period from December 2007 to February 2014 DSP was not payable.
On 22 May 2014 Mr Nikolovski lodged a claim for DSP on the basis that he suffered medical conditions which were having an impact on his ability to function.
Mr Nikolovski’s claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.
In a decision dated 24 February 2015 the Social Security Appeals Tribunal (“SSAT”) found that Mr Nikolovski had a total impairment rating of 20 points, with 10 points under Table 4, 5 points under Table 3 and 5 points under Table 5 and did satisfy s 94(1)(b) of the Act .
However, the SSAT found that Mr Nikolovski did not satisfy the requirements of s 94(1)(c) of the Act in that he did not have a continuing inability to work because he had not actively participated in a program of support. In these proceedings Mr Nikolovski seeks review of the decision of the SSAT.
At the hearing Mr Nikolovski and was able to give oral evidence.
ISSUES
In order to qualify for DSP, Mr Nikolovski must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 22 May 2014 and 21 August 2014 (the claim period).
Section 94(1) of the Act provides that a person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Mr Nikolovski suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The relevant medical conditions are a mental health condition (post-traumatic stress disorder- “PTSD”), a spine condition and a lower limb condition.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
The Introduction to Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, 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 a psychiatrist)”.
The Respondent concedes and the Tribunal accepts that during the claim period Mr Nikolovski’s suffered a moderate functional impact on activities involving spinal condition so that a rating of 10 points under Impairment Table 4 can be applied.
The Respondent concedes and the Tribunal accepts that during the claim period Mr Nikolovski suffered a mild functional impact on activities requiring use of the lower limbs so that a rating of 5 points under Impairment Table 3 can be applied.
The Respondent concedes and the Tribunal accepts that during the claim period Mr Nikolovski’s mental health condition was fully treated, fully stabilised and not likely to improve within 24 months.
The Respondent contends that during the claim period there was a mild functional impact on activities involving mental health function so that rating of 5 points under Table 5 can be applied.
Accordingly, the Respondent accepts that during the claim period Mr Nikolovski’s total rating under the Impairment Tables was 20 points so that he did satisfy the requirements of s 94(1)(b) of the Act.
However, the Respondent contends that Mr Nikolovski did not have “continuing inability to work” because he had not actively participated in a program of support.
Section 94(2) of the Act provides that 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.
Subsection 94(3B) provides that “a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.
Mr Nikolovski concedes that he had not actively participated in a program support but contends that during the claim period he did have a “continuing inability work” on the basis that his mental health condition had a severe impact on activities involving mental health function so that a rating of 20 points under Impairment Table 5 should be applied.
Accordingly, the definitive issue in these proceedings is whether during the claim period Mr Nikolovski’s impairment was 20 points or more under Impairment Table 5 and if so whether the provisions s94(2)(a) and (b) are satisfied.
Mr Nikolovski’s evidence
Mr Nikolovski told the Tribunal that following the MVA in 2007 he started to suffer psychological symptoms that increased over time and eventually led to a consultation with Dr Smith, consultant psychiatrist, in September 2010.
Dr Smith started treatment with relevant medication and arranged for Mr Nikolovski to be admitted to the St John of God Hospital in Richmond. He stayed in hospital for three weeks and on discharge was referred to Mr Fraser a clinical psychologist for continuing psychological treatment. Initially he saw Mr Fraser every two to four weeks but, against advice, he eventually stopped sometime in 2013 because he wanted to try to handle his various issues by himself. He said that he had been warned by Mr Fraser that he should continue with psychological treatment because it was likely that he was “going to get worse”. Although he stopped the regular psychological treatment he continued to take the medication that had been prescribed during his stay in hospital.
In July 2015 Mr Nikolovski returned to see Dr Smith who adjusted his medication because of concerns about adverse drug interactions and the possibility that one of the drugs was contributing to his aggressive behaviour. He also began seeing Mr Fraser again as well as another psychologist. He explained the he was no longer able to afford to see Mr Fraser on a regular basis but was able to arrange 10 free visits with a second psychologist which has recently been extended.
Mr Nikolovski told the Tribunal that he lives with his mother who provides significant assistance with his daily self-care activities. He is estranged from his wife and children and divorce proceedings are currently being finalised. He said that in 2014 when he became aware that his daughter had been driving without a licence he tried to intervene but was arrested for breaching an AVO and spent several weeks in gaol. In a subsequent court appearance he was immediately released and claims that the “judge” told him that should not have been put into gaol.
Medical Evidence
In a letter dated 17 September 2010 Dr Smith noted that since the accident in 2007 Mr Nikolovski had not been able to integrate at work and reported being persistently depressed, having pain with restriction of movement, having a markedly altered mood state, having no life and becoming socially avoidant and increasingly irritable.
Dr Smith stated that Mr Nikolovski presented as “an anxious, agitated and depressed man who demonstrates diagnostic criteria for a chronic Post-traumatic Stress Disorder” and recommended admission to St John of God Hospital to attend the Post-Traumatic Stress Disorder program.
In a letter dated 10 November 2010 Dr Smith confirmed that Mr Nikolovski was admitted to St John of God Hospital on 27 September 2010 and discharged on 15 October 2010 and noted that he displayed diagnostic criteria for a “Chronic Pain Syndrome in association with a Chronic Post-Traumatic Stress Disorder.” On mental state examination Mr Nikolovski demonstrated “panic attacks, increased confusion, poor sleep, lack of appetite, social isolation, nightmares and flashbacks. Symptomatologies arising from his motor vehicle accident that occurred approximately three years previously had not subsided.”
Dr Smith noted that Mr Nikolovski engaged in group therapy, 1:1 counselling, was administered medication (Tegretol, Tramal, Sertaline, Ativan, Imovane, Periactin, Xanax) and discharged to the care of his family doctor and Mr Fraser, his treating psychologist.
Dr Smith commented that Mr Nikolovski had only modest benefit from the treatment program and “clearly has not resolved his psychiatric symptomatologies, is in need of ongoing psychological supports and appropriate pharmacotherapy” and was currently disabled on psychiatric grounds with a guarded prognosis given “the significance of his psychopathology”.
In a letter dated 22 December 2010 Dr Smith provided a whole person impairment evaluation in accordance with the Motor Accidents Authority Guidelines - Psychiatric Impairment Rating Scale (PIRS).
The PIRS provides six class descriptors for the evaluation of the severity of functional impact which are similar to the six areas of functional impact contained in Impairment Table 5. The examples provided in each descriptor are similar to the examples in the comparable descriptor in Impairment Table 5 with some relevant differences.
On consideration of the descriptors and examples in Impairment Table 5 and the evaluation of the functional impact on activities on mental health function provided by Dr Smith I am satisfied that under Table 5 there was moderate impact in three descriptors [(c),(d),(e)], severe impact in 2 descriptors[(a),(b)] and extreme impact in one descriptor [(f)].
In a Centrelink Medical Report dated 6 March 2014 Dr Lipinski provided little useful clinical information but did confirm that that Mr Nikolovski’s current treatment for “depression, anxiety, panic attacks” included Zoloft, Ativan and Imovane.
In a letter dated 24 July 2015 Dr Smith noted that Mr Nikolovski “is a patient under my clinical care” and that since the MVA in 2007 he had experienced significant physical and psychological symptoms and had “not been able to engage in any work”.
In a report dated 14 July 2015 Mr Fraser provided a comprehensive evaluation of Mr Nikolovski’s mental health which included an evaluation in accordance with the Psychiatric Impairment Rating Scale (PIRS). He concludes that Mr Nikolovski suffers from Post-traumatic Stress Disorder with mixed anxiety and depressed mood as per DSM-5.
FINDINGS
On consideration of the descriptors and examples in Impairment Table 5 and the evaluation of the functional impact on Mr Nikolovski’s activities involving mental health function provided by Mr Fraser, I find the following:
·Self care and independent living – he is unable to live on his own. He lives with his mother who provides significant support with daily activities (extreme impact);
·Social/recreational activities and travel – he requires a trusted support person to travel away from home, he rarely attends social events (severe impact);
·Interpersonal relationships – his previous close relationships have ended, he avoids family and friends, he hides from visitors and is unable to look after his children (severe impact);
·Concentration and task completion – he can only read one or two lines of a newspaper, can only attend to a mentally demanding task for around 5 minutes, avoids tasks that require concentration, cannot concentrate long enough to fulfil the requirements of an educational course, has difficulty in maintaining concentration with conversations (severe to extreme impact);
·Behaviour, planning, decision making – he has difficulty with making decisions, has rapid mood swing has episodes of poorly controlled anger rapid (moderate impact);
·Work/training capacity- unable to attend work, education or training sessions on a regular basis over a lengthy due to ongoing mental illness (severe impact).
Accordingly, I am satisfied that in July 2015 Mr Nikolovski had severe difficulties with most of the relevant descriptors in Impairment Table 5 so that a rating of 20 points could be applied.
The question that the Tribunal must now consider is whether the evaluation by Mr Fraser can be retrospectively applied to the claim period.
The Respondent submits that the evaluation was performed almost 12 months after the end of the claim period and that Mr Fraser made no reference to the claim period so that a rating under the Impairment Tables cannot be applied.
However, the Respondent has conceded and the Tribunal accepts that during the claim period Mr Nikolovski’s mental health condition was fully treated and fully stabilised and that the condition was unlikely to improve in the subsequent 24 months.
There is no evidence before the Tribunal that there has been any change in Mr Nikolovski’s mental health condition in the 12 months since the end of the claim period so that, if one accepts that the condition was fully stabilised at that time, it follows, in my view, that it is likely that Mr Fraser’s evaluation in July 2015 would also apply to the claim period.
Furthermore, it is clear from the evidence before the Tribunal that Mr Nikolovski has suffered a moderate to severe impairment as a result of his mental health condition for at least five years. The comparison between the two PIRS evaluations suggests a gradual increase in severity over time, however, I am satisfied that, for the purposes of the Impairment Determination, his condition was fully stabilised during the claim period.
I note that Mr Nikolovski has not been able to engage in regular work or training for more than five years.
Dr Smith, in his PIRS evaluation, rated employability as class 5 which equates to being “totally impaired.” Mr Fraser, in his PIRS evaluation, rated employability as class 4 which equates to a “severe impairment – cannot work more than one or two days at a time, less than 20 hours per fortnight.”
In note that that in section 94(5) of the act ‘work’ is defined inter alia as work “that is for at least 15 hours per week on wages…” that is, at least 30 hours per fortnight.
On consideration of the all the evidence before the Tribunal I am satisfied that during the claim period the impairment suffered by Mr Nikolovski as a result of his mental health condition was, of itself, sufficient to prevent him from doing any work independently of a program of support within the next two years so that he satisfied the requirements of section 94(2)(a) of the Act.
Also, I am satisfied that during the claim period the impairment suffered by Mr Nikolovski as a result of his mental health condition was, of itself, sufficient to prevent him from undertaking a training activity during the next 2 years so that he the requirements of section 94(2)(b) (i) of the Act.
Accordingly, I am satisfied that during the claim period Mr Nikolovski satisfied the requirements of section 94(1)(c) so that he did qualify for DSP.
DECISION
The decision under review is set aside and in substitution a decision that during the claim period Mr Nikolovski satisfied the requirements of section 94(1) of the Act and did qualify for DSP.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .......................[sgd].................................
Associate
Dated 20 October 2015
Date(s) of hearing 8 October 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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