Owen and Secretary, Department of Social Services (Social services second review)
[2019] AATA 960
•22 May 2019
Owen and Secretary, Department of Social Services (Social services second review) [2019] AATA 960 (22 May 2019)
Division:GENERAL DIVISION
File Number: 2018/0633
Re:Michelle Owen
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:22 May 2019
Place:Brisbane
The Tribunal affirms the decision under review.
...............................[SGD]...............................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether mental health condition fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.REASONS FOR DECISION
Member D K Grigg
22 May 2019
INTRODUCTION
On 28 September 2016 Ms Michelle Owen (“Ms Owen”) lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as:[1]
Chronic mixed anxiety and depression
Any stressor, such as having to leave the house, attend appointments, meet new people, travel outside local geographical area or meet deadlines for activities leads to severe distress and panic attacks, poor sleep and social withdrawal
[1] Exhibit 1, T Documents, T16, pages 107-137, Ms Owen’s Claim for DSP dated 28 September 2016.
On 8 December 2016 a Job Capacity Assessment (“JCA”) was conducted by telephone with Ms Owen by a registered psychologist. The JCA concluded that Ms Owen did not have an Impairment Rating of 20 points and that, in relation to her mental health conditions, there was a lack of psychiatric management.[2]
[2] Exhibit 1, T Documents, T17, pages 138-145, JCA Report dated 8 December 2018.
As a result of the JCA report Centrelink rejected Ms Owen’s claim for DSP on 10 December 2016.[3]
[3] Exhibit 1, T Documents, T18, pages 146-147, Letter from Centrelink dated 12 January 2016.
Claim History
Ms Owen sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Owen’s medical conditions were not fully diagnosed, treated and stabilised.[4]
[4] Exhibit 1, T Documents, T24, pages 165-170, Decision of ARO dated 27 October 2017.
Ms Owen lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Ms Owen’s claim and affirmed the ARO’s decision on 16 January 2018.[5]
[5] Exhibit 1, T Documents, T2, pages 3-11, SSCSD’s Decision and Reasons for Decision dated 16 January 2018.
Ms Owen has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1-2, Ms Owen’s Application for Review dated 6 February 2018.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Owen must have a physical, intellectual or psychiatric impairment;
(b)Ms Owen’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Ms Owen must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Owen meets the Section 94 Requirements is the date of the claim (in this instance as at 28 September 2016), unless Ms Owen becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, in order to qualify for DSP Ms Owen must have met the Section 94 Requirements between 28 September 2016 and 28 December 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Owen’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[9]
DID MS OWEN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT(S) DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Ms Owen’s medical conditions
[10] Determination, s 3.
Hearing
In January 2015 Ms Owen had her hearing tested and the results indicated she had mild sensorineural hearing loss in both ears. The audiologist reported that hearing aids were recommended and that even without the hearing aids she would still be eligible to hold an unconditional drivers licence.[11]
[11] Exhibit 1, T Documents, T10, pages 96-97, Audiologist report dated 10 August 2015.
In September 2015 Dr Yasmin Trinidad, General Practitioner, (“Dr Trinidad”) reported that Ms Owen had no hearing impairment when she used her hearing aids.[12]
[12] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 2, Report of Dr Trinidad
dated 24 September 2015.
At the hearing Ms Owen confirmed that she had no difficulties hearing when she used her hearing aids.
Mental health
In April 2015 Dr Trinidad reported that:[13]
(a)Ms Owen had depression and anxiety which began in 2007;
(b)Ms Owen’s mental health conditions were treated with medication and counselling which were planned to continue;
(c)Ms Owen’s symptoms included:
depressed mood, teary, insomnia, poor appetite, poor memory, poor concentration, anhedonia, difficulty with decision-making, difficulties in problem solving, unrefreshed sleep, initial insomnia, decreased energy due to poor sleep, agoraphobia, panic attacks, panics when in crowded areas
(d)Ms Owen’s mental health conditions were expected to persist for more than 24 months and are expected to remain unchanged within the next 2 years.
[13] Exhibit 1, T Documents, T8, pages 77-84, Report of Dr Trinidad dated 30 April 2015.
In August 2015 Ms Victoria Simpkins, Clinical Psychologist, (“Ms Simpkins”) reported that:[14]
(a)Ms Owen had previously been seen on a regular basis by a psychiatrist and psychologist in 2008, (at the time she was originally granted DSP);
(b)in May 2014 Ms Owen presented in an extremely distressed state with her depression and anxiety levels exceeding the cut-off marks for extreme distress pursuant to the Depression, Anxiety and Stress Scale (“DASS”);
(c)Ms Owen saw Ms Simpkins on a regular basis for four months during which time her condition improved significantly;
(d)Ms Owen presented to Ms Simpkins again in May 2015 again in an extremely distressed state;
(e)between May 2015 and August 2015 Ms Owen was seeing Ms Simpkins on a regular basis and had made good progress; and
(f)she strongly supported Ms Owen continuing to be in receipt of DSP.
[14] Exhibit 1, T Documents, T11, pages 98-99, Report of Ms Simpkins dated 13 August 2015.
In April 2016 Dr Elsa Yeung, Consultant Psychiatrist, (“Dr Yeung”) was briefed by Legal Aid (NSW) to provide an assessment for Ms Owen. For the purpose of preparing her report Dr Yeung conducted an interview with Ms Owen and was provided with, among other things, a copy of Dr Trinidad’s reports and a JCA report from 2015. Dr Yeung reported that:[15]
(a)Ms Owen presented with chronic depressive symptoms;
(b)Ms Owen suffers from major depressive disorder, moderate severity, chronic, and panic disorder without agoraphobia;
(c)Ms Owen told her that she had been trialled on multiple anti-depressants;
(d)in her opinion Ms Owen’s depression and anxiety were causing a severe functional impact on activities involving mental health function and caused her to be unable to work for at least 15 hours per week; and
(e)“given the chronicity and severity of illness, I doubt that even with further treatment Ms Owen will be able to regain a significant level of functioning hence leading to return to work. She suffers from a chronic level of depression with panic disorder… At this stage, in my opinion, it is unlikely that she would be able to achieve an improvement which would lead to return to any form of work within the next two years”.
[15] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 4, Report of Dr Yeung
dated 28 April 2016.
In March and June 2016 Dr Trinidad reported that Ms Owen’s anxiety and depression were temporarily exacerbated and that she was seeing a psychologist and was on medication which was planned to continue.[16]
[16] Exhibit 1, T Documents, T12, page 100, Medical certificate of Dr Trinidad dated 29 March 2016.
Ms Simpkins provided a further report in September 2016. Ms Simpkins reported that:[17]
(a)she had had 20 sessions of psychotherapy with Ms Owen;
(b)Ms Owen’s mental health status had deteriorated as a consequence of being assessed as not eligible for DSP;
(c)Ms Owen’s DASS scores deteriorated further and she was in the extreme range for depression, anxiety and stress;
(d)Ms Owen’s symptoms meet the criteria for major depressive disorder, recurrent and chronic; and
(e)she had recently been appointed as a medical assessor for Centrelink and was more aware of the impairment tables and how they functioned. She was confident in saying that Ms Owen met the criteria for a score of 20 points under Table 5.
[17] Exhibit 1, T Documents, T15, pages 103-106, Report of Ms Simpkins dated 28 September 2016.
In January 2017 Dr Trinidad reported that although Ms Owen had been compliant with her treatment she continues to have symptoms that will impair her ability to work or train.[18]
[18] Exhibit 1, T Documents, T19, page 148, Medical certificate of Dr Trinidad dated 6 January 2017.
In January 2017 Doctor Satya Haritha Devineni, Consultant Psychiatrist, (“Dr Devineni”) reported that:[19]
(a)Ms Owen was continuing her treatment for severe depression with psychotic symptoms;
(b)although there was some improvement in her mental state she continues to struggle with depression which affects her ability to function and maintain day-to-day care; and
(c)she strongly supported her application for DSP.
[19] Exhibit 1, T Documents, T20, page 149, Report of Dr Devineni dated 20 January 2017.
In February 2017 Ms Simpkins provided a further report that in her opinion Ms Owen’s mental health condition was permanent and she strongly supported her application for DSP.[20]
[20] Exhibit 1, T Documents, T21, pages 150-152, Report of Ms Simpkins dated 1 February 2017.
In 2018 Centrelink referred Ms Owen’s matter to the Health Professional Advisory Unit (“HPAU”) of the Department of Human Services for a review. The medical practitioner from the HPAU that reviewed Ms Owen’s file was Dr Sandra Armstrong, General Practitioner (“Dr Armstrong”). In Dr Armstrong’s opinion Ms Owen’s features and symptoms indicated a diagnosis of psychotic depression and that Ms Owen had not trialled appropriate anti-depressants.[21]
[21] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 1, Report of Dr Armstrong dated 12 June 2018.
Ms Simpkins provided a further report in August 2018 and stated that:[22]
(a)“I am confident in saying that on Table 5 – Mental Health Function, Ms Owen meets the criteria for a score of 20 indicating that there is a severe functional impact on activities involving mental health functioning”; and
(b)Ms Owen remains extremely depressed, extremely anxious and extremely stressed as measured by the DASS and clinical assessment.
[22] Exhibit 5, Report of Ms Simpkins dated 24 August 2018.
Leg Pain
In April 2015 Dr Trinidad reported that Ms Owen had chronic right leg pain from a past fracture but it was generally well managed and caused minimal or limited impact on her ability to function.[23]
[23] Exhibit 1, T Documents, T8, pages 77-84, Report of Dr Trinidad dated 30 April 2015.
In August 2015 Dr Trinidad reported that Ms Owen has right leg pain at times and sometimes needed to use a walking stick.[24]
[24] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 3, Report of Dr Trinidad
dated 12 August 2015.
In significant contrast to her report of May 2015, in September 2015 Dr Trinidad reported that, Ms Owen’s right leg pain was having a moderate impairment on Ms Owen’s ability to function. She wrote that:[25]
(a)Ms Owen had chronic right leg pain from a past fracture of the tibia in 2013;
(b)Ms Owen will have ongoing fluctuating pain indefinitely;
(c)physiotherapy and weight loss can improve the pain with some functional improvement;
(d)the impairment rating should be moderate;
(e)Ms Owen uses a walking stick when the pain is worse; and
(f)Ms Owen is unable to stand for more than 15 minutes due to leg pain.
[25] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 2, Report of Dr Trinidad
dated 24 September 2015.
In August 2017 Ms Owen presented at hospital with bilateral leg weakness and numbness and was diagnosed with Akathisia[26] with no organic cause found. The hospital reported that on discharge Ms Owen was mobilising well with no assistance.[27]
[26] A pathological condition characterised by restlessness and agitation, such as an inability to sit still. A side effect of phenothiazine drugs. (Mosby’s Dictionary of Medicine, Nursing & Health Professions (3rd ed, 2019) ‘Akathisia’).
[27] Exhibit 4, Hospital discharge summary dated 28 August 2017.
Heart
In August 2015 Dr Trinidad reported that Ms Owen has mild cardiomegaly, mild aortic stenosis and intermittent palpitations and has been to a cardiac rehabilitation facility.[28]
[28] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, annexure 3, report of Dr Trinidad dated 12 August 2015.
At the hearing Ms Owen informed the Tribunal that she had had no heart issues since 2015.
Shoulder
A CT scan of Ms Owen’s cervical spine in July 2018 indicated that Ms Owen’s left shoulder had very early anterior marginal osteophyte formation.[29]
[29] Exhibit 4, CT report dated in July 2018.
Conclusion on Impairment
In light of the above medical evidence the Tribunal finds that during the Qualification Period Ms Owen suffered a Mental Health Impairment, namely anxiety and depression, and that the requirement in section 94(1)(a) of the Act has been met. This is not disputed by the Secretary.
There is no impairment to Ms Owen’s hearing provided she wears hearing aids and therefore this condition cannot be considered for the purposes of this application. There is also limited evidence available regarding Ms Owen’s leg pain and inconsistent evidence regarding how it impacts on her ability to function. In relation to Ms Owen’s heart condition again there is no evidence from a specialist before the Tribunal and Ms Owen confirmed she had had no heart issues since 2015. In relation to Ms Owen’s shoulder condition this condition did not arise until July 2018 which is well outside the Qualification Period relevant to this application and therefore cannot be considered.
At the hearing Ms Owen agreed that the primary reason for her DSP application was due to her Mental Health Impairment.
DOES MS OWEN’S MENTAL HEALTH IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[30] They are function based[31] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[32]
[30] Determination, ss 4(2) and 5(2)(a).
[31] Determination, ss 5(2)(b) and (c).
[32] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[33]
(a)Ms Owen’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[33] Determination, see s 6(3).
Ms Owen’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[34]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[34] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[35] the following must be considered:[36]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[35] For the purposes of ss 6(4)(a) and (b) of the Determination.
[36] Determination, see s 6(5).
A condition is fully stabilised[37] if:[38]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[39] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[37] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[38] Determination, see s 6(6).
[39] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Ms Owen’s mental health condition permanent and likely to persist for at least 2 years?
The medical evidence confirms that Ms Owen’s mental health condition is long-standing, chronic, and at times extreme. It is not in dispute that Ms Owen’s mental health conditions are fully diagnosed.[40]
[40] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, para 33.
The Secretary contends that Ms Owen’s Mental Health Impairment was not permanent on the grounds that it was not fully treated and fully stabilised during the Qualification Period. Ms Owen was, and is still, receiving treatment for her condition. The question is whether the continued treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years such that it can be said her condition is fully stabilised.[41]
[41] For the purposes of ss 6(4)(c) and 11(4) of the Determination; see also Determination, see s 6(6).
The Secretary relies on the following material in support of that contention:[42]
(a)the JCA report of 8 December 2016;[43] and
(b)the report by Dr Armstrong dated 12 June 2018.[44]
[42] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, para 34.
[43] Exhibit 1, T Documents, T17, pages 138-145, JCA report dated 8 December 2016.
[44] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 1, Report of Dr Armstrong dated 12 June 2018.
Notably missing from the material relied upon by the Secretary is any report of Ms Owen’s long-standing treating medical practitioners, or those provided by mental health experts.
The JCA reported that Ms Owen’s mental health conditions were not fully treated and stabilised based on a lack of information from a psychiatrist. However, it is not clear why this was necessary given that Ms Simpkins, Ms Owen’s clinical psychologist who was present at the JCA assessment, described Ms Owen’s symptoms as having a severe impact on her ability to function. The JCA reported that Ms Simpkins apparently noted that it was recommended that Ms Owens see a psychiatrist in order to fulfil her DSP legal requirements. That recommendation was purely to fulfil what someone believed, incorrectly, was required. Table 5 of the Determination can be satisfied by a diagnosis from a clinical psychologist alone. Further, Ms Owen had been seen regularly by a psychiatrist in 2008 and had been diagnosed by Dr Yeung in April 2016.
Having reviewed Ms Owen’s medical reports, Dr Armstrong provided her own diagnosis of “psychotic depression” and indicated she had not been fully treated for this condition because she had not trialled alternative anti-depressant medication as suggested by the 2015 Royal Australian and New Zealand College of Psychiatry Clinical Practice Guidelines (“the RANZCP Guidelines”). Dr Armstrong is not a qualified clinical psychologist or psychiatrist. What specialist qualification does she have to make such a diagnosis? Dr Armstrong did not meet with or examine Ms Owen. Moreover, Dr Armstrong has not discussed her provisional diagnosis or treatment suggestions (of changing/increasing her medication dosage) with Ms Owen’s treating practitioners. Dr Armstrong did attempt to contact Drs Trinidad and Devineni but they had moved to different workplaces and were unable to be contacted.
There is no evidence from Ms Simpkins or Dr Yeung that alternative medications would result in a significant ability to function. Dr Yeung does suggest that Ms Owen should recommence treatment with a psychiatrist in order to review her medication but she also says that she doubts further treatment would result in a significant improvement such that would enable Ms Owen to work.
Mr Rick McQuinlan, lawyer for the Respondent (“Mr McQuinlan”), said that Dr Yeung appeared to just accept the information she had been provided and that there was no evidence that Ms Owen had trialled multiple medications. Dr Yeung makes it clear it is a chronic condition that is unlikely to significantly improve function. The Tribunal finds that alternative medications are not reasonable treatment for Ms Owen given the experts’ opinion.
At the hearing Ms Owen said she had trialled multiple medications over the years. Dr Devineni put her on an anti-psychotic because she was having suicidal thoughts but she was taken off that medication when she went into hospital in 2017.
Mr McQuinlan provided a Pharmaceutical Benefit Scheme (“PBS”) summary sheet produced by the Department of Human Services, but it only related to the period from 2016 onwards.[45] This is not evidence that Ms Owen has not trialled alternative medications because it does not cover the nine year period between 2007 and 2016. As it turns out the PBS sheet shows Ms Owen had been prescribed some anti-psychotic medication in 2017, which accords with Ms Owen’s evidence. Dr Armstrong did not have access to the PBS summary sheet, so she could not have known what medications Ms Owen had trialled.
[45] Exhibit 7, PBS Summary.
The PBS summary sheet shows that Ms Owen has been on a variety of medications since 2016.
Mr McQuinlan said that treatment would be reasonable if it meant that a person’s impairment rating went from 30 points to 20 points. The Tribunal accepts this would be an improvement in a person’s ability to function, but one has to consider the definition of “reasonable treatment” as defined in the Determination. Improvement alone will not suffice. The treatment must result in a significant functional improvement which enables a person to undertake work (see definition of “fully stabilised” at paragraph [39] above). It is the ability to work which is relevant to a DSP assessment. Mr McQuinlan suggested part-time work or any kind of work would satisfy this requirement. This is not correct. “Work” is specifically defined in section 94(5) of the Act as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage. Dr Yeung reported that she did not believe Ms Owen could work for 15 hours per week.
Dr Armstrong also reported that she believes Ms Simpkins “is not providing an objective assessment and is acting as an advocate for Ms Owen”.[46] It is unclear why she came to that accusatory view, particularly as she did not discuss Ms Owen’s conditions with her. Such an accusation which is directed toward undermining the weight that should be given to the professional opinion of Ms Simpkins should have been put by the Secretary to Ms Simpkins for her response and it was not.
[46] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 1, Report of Dr Armstrong dated 12 June 2018.
Dr Armstrong is neither a qualified clinical psychologist nor a qualified psychiatrist. Dr Armstrong relies for her opinion on her reading of the RANZCP Guidelines. The Tribunal gives less weight to Dr Armstrong’s opinion than that of Ms Owen’s treating practitioners and mental health specialists. The Tribunal acknowledges Dr Armstrong’s 34 years of experience and that she has worked with mental health patients but this is not a substitute for specialist training. To become a registered psychiatrist, like Drs Yeung and Devineni, it is necessary to have completed a medical degree and have undertaken and completed a 60 month full time fellowship program.[47] Clinical psychologists must undertake similarly rigorous training.
[47] See Royal Australian and New Zealand College of Psychiatrists qualification criteria at
The Tribunal does not accept that a general practitioner’s opinion of the diagnosis and treatment of a serious mental illness should be favoured over that of a clinical psychologist and a psychiatrist.
At the hearing Mr McQuinlan acknowledged that Dr Armstrong was not a clinical psychologist or a psychiatrist and submitted that her expertise lay in applying the Impairment Tables and that she had more experience in applying the Impairment Tables than Ms Simpkins. This Tribunal was not aware that an Impairment Table “specialty” existed. The Tribunal accepts that Dr Armstrong has many years’ experience in applying the Tables, but the submission that a specialist, or indeed a Tribunal Member, would not be able to equally understand and apply the Impairment Tables, which are in plain English, is baseless.
Table 5 specifically provides that a diagnosis of a mental health condition “must be made by an appropriately qualified medical practitioner”.[48] Section 3 of the Determination defines an appropriately qualified medical practitioner as a “practitioner with qualifications and practice relevant to diagnosing a particular condition”. Dr Armstrong does not meet that description for the purpose of Table 5. Further, section 7 of the Determination provides that in applying the Tables that the information provided by the health professionals specified in the Table must be taken into account. That is the evidence of Ms Simpkins and Dr Yeung has to be taken into account.
[48] Determination, see Part 3 – The Tables, Table 5.
The Tribunal also notes that Dr Armstrong’s assessment and report were not undertaken and provided until after the decision of the SSCSD. It is unclear why the Secretary felt it necessary to obtain this report given that Ms Owen had already been examined and assessed by:
(a)her treating general practitioners since 2007;
(b)a Consultant Psychiatrist, in 2008 and 2016; and
(c)her treating Clinical Psychologist, Ms Simpkins since 2014.
The Tribunal considers that based on the reports of Ms Simpkins and Drs Yeung and Devineni, it is clear that the mental health experts do not consider that any significant improvement in function will result over the next two years, even with her continued or further treatment.
All of Ms Owen’s treating practitioners describe depression, or major depression, and anxiety. Appropriate psychiatric tests and examination techniques were used by the specialists to form their opinions. There was no criticism of those techniques. In addition, neither Ms Simpkins nor Dr Yeung, were called by the Secretary to be cross-examined and to have Dr Armstrong’s opinion and criticisms put to them.
Given the above, the Tribunal prefers the evidence of Ms Simpkins and Dr Yeung to that of Dr Armstrong.
In Ms Simpkins’ and Dr Yeung’s opinion, further treatment was not going to result in a significant improvement in Ms Owen’s functional ability.
The Tribunal finds that Ms Owen’s mental health Impairment was fully treated and fully stabilised as defined in section 6(5) of the Determination.
The Tribunal finds that during the Qualification Period Ms Owen’s Mental Health Impairment was permanent for the purpose of the Act and likely to persist for at least 2 years. An Impairment Rating using the Impairment Tables can now be assigned.
USING THE IMPAIRMENT TABLES
The level of impact of Ms Owen’s Mental Health Impairment has to be assessed against the descriptors[49] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[50]
[49] Determination, see ss 3 and 5(3).
[50] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[51]
[51] Determination, see s 6(1).
The Determination requires that the following information must be taken into account in applying the Tables:[52]
(a)the information provided by the health professionals specified in the relevant Table (that is, as discussed earlier, not a general practitioner or impairment table expert); and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[52] Determination, see s 7 (emphasis added).
The following information must not be taken into account in applying the Tables:[53]
(a)symptoms reported by Ms Owen in relation to her condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Owen’s local community.
[53] Determination, see s 8.
Which Tables are appropriate is determined by:[54]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct Impairment Rating.
[54] Determination, see s 10(1).
If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[55]
[55] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[56]
[56] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[57]
[57] Determination, see s 11(5).
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The JCA did not assign an Impairment Rating as it concluded that Ms Owen’s condition was not permanent.[58]
[58] Exhibit 1, T Documents, T17, pages 138-145, Job Capacity Assessment report dated 8 December 2016.
The Secretary submits there is no evidence to support a claim of 20 points alone under a single Table and that if it was accepted the Ms Owen's depression and anxiety conditions are regarded as fully diagnosed, treated and stabilised, that the evidence supports a finding that Ms Owen has at most a moderate functional impact.[59]
[59] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, para 37.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities involving mental health function.
The descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
EVIDENCE IDENTIFYING THE LOSS OF FUNCTION
In Ms Simpkins’ opinion Ms Owen’s Mental Health Impairment attracts a 20 point Impairment Rating.
The Secretary submitted that Ms Simpkins’ view is contrary to the assessment of an independent psychiatrist, Dr Yeung, conducted 28 April 2016 which indicates Ms Owen's level of impairment is moderate. That claim is not strictly accurate. Dr Yeung actually reported that in her opinion “it would be reasonable to give an average of “severe” functional impact on activities involving mental health function” and that:
given the chronicity and severity of her illness, I doubt that even with further treatment Ms Owen will be able to regain significant level of functioning hence leading to return to work. She suffers from a chronic level depression with panic disorder… At this stage, in my opinion, is unlikely that she would be able to achieve an improvement which would lead to return to any form of work within the next two years.[60]
[60] Exhibit 2, Secretary's Statement of Facts and Contentions dated 26 July 2018, Annexure 4, Report of Dr Yeung
dated 28 April 2016.
Dr Yeung considered the 20 point descriptor categories and thought that Ms Owen met the extreme level in 2 of the categories and a moderate level in three of the categories. Although Dr Yeung refers to Ms Owen having an average severe functional impact, that is not how the Impairment Tables are to be applied. In order to obtain an Impairment Rating of 20 points, most of the functional descriptors have to apply. If one considered Dr Yeung’s report alone, the Impairment Rating could fall between 10 and 20 points.
The Secretary stated that Dr Yeung had not been provided with the full patient history or medication summary. However, Dr Yeung did have Dr Trinidad’s medical report which sets out her medical history. Further, Dr Yeung would have indicated if she was not able to provide an opinion based on the information she had available to her.
Dr Armstrong suggested a 10 point Impairment Rating would be appropriate if Ms Owen’s Mental Health condition was found to be permanent.
The Secretary submitted that Ms Simpkins’ view is contrary to the assessment of Dr Armstrong. However, as explained earlier, the Tribunal prefers the opinion of Ms Simpkins.
Ultimately the application of Table 5 is a matter of judgement as to whether someone’s mental health is having a mild, moderate, severe or extreme functional impact. The best people to exercise that judgment would be the treating clinical psychologist and assessing psychiatrists.
Based on the above the Tribunal finds that the impact of Ms Owen’s Mental Health Impairment during the Qualification Period falls between moderate (10 points) and severe (20 points). If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[61]
[61] Determination, see s 11(1).
Therefore, the appropriate impairment rating to be assigned for Ms Owen’s Mental Health Impairment under Table 5 of the Impairment Tables is 10 points.
DID MS OWEN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
As Ms Owen’s Mental Health Impairment only attracted a 10 point Impairment Rating it is unnecessary for me to consider whether Ms Owen had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION
Ms Owen did not satisfy the Section 94 Requirements during the Qualification Period and therefore did not qualify for DSP at the date of her claim.
Centrelink has now determined, pursuant to a subsequent DSP application lodged by Ms Owen on 27 July 2018, that Ms Owen qualifies for DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..................................[SGD]...............................
Associate
Dated: 22 May 2019
Dates of hearing: 20 December 2018 and 2 April 2019 Date reserved: 1 May 2019 Applicant: By telephone Advocate for the Respondent: Mr Rick McQuinlan Solicitors for the Respondent: Department of Human Services
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Standing
0
1
0