Peterson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 575
•4 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2006/1044
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
JANET PETERSON
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate4 July 2008
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]...................
M D Allen Presiding Member
CATCHWORDS
DISABILITY SUPPORT PENSION – review of decision by social security appeals tribunal that respondent was entitled to disability support pension – qualified for disability support pension if physical, intellectual or psychiatric impairment rating amounted to 20 points or more under impairment tables and had a continuing inability to work – whether applicant’s psychiatric illness had been diagnosed, treated and stabilised to attract an impairment rating of 10 points or more – working diagnosis – treatment is not required to be optimal – ongoing supervision by a general practitioner without specialist referral is recognised – decision under review affirmed
LEGISLATION
Social Security Act 1991 sections 23, 94, 94(1)(b), 94(2), 94(5) and Schedule 1B
Social Security (Administration) Act 1999 Section 42 and Schedule 2
CASE LAW
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Shi v Migration Agent Registration Authority (2007) 158 FCR 525
REASONS FOR DECISION
4 July 2008 Senior Member M D Allen
Dr M E C Thorpe, Member1. By application made the 17th day of August 2006 the Applicant sought review of a decision by a Social Security Appeals Tribunal on 11 July 2006 that the Respondent was entitled to payment of the Disability Support Pension.
2. The Respondent applied for the grant of DSP on 28 February 2005. At all relevant times the criteria for the grant of DSP are set out in section 94 of the Social Security Act 1991. That section reads inter alia:
“A person is qualified for disability support pension if they have a physical, intellectual or psychiatric impairment which amounts to 20 points or more under the Impairment Tables and has a continuing inability to work.”
3. The Impairment Tables referred to in paragraph 94(1)(b) SSA are found in Schedule 1B to the said Act. The term “a continuing inability to work” is defined in subsection 94(2) SSA as:
“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 within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.”
Work is defined in ss 94(5) SSA as:
“The word ‘work’ means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.”
4. In the course of these proceedings the Respondent’s solicitor submitted that the Impairment Tables as contained in Schedule 1B must be read as stand alone documents uninfluenced by the introduction preceding the specific Tables in Schedule 1B. We do not accept this submission.
5. Section 23 SSA defines impairment Tables as “means the Tables in Schedule 1B”. The introduction to the Tables then forms in our opinion a statement of intention as to how the Tables are meant to operate similar to an objects clause in an Act. As pointed out by the learned authors of Pearce and Geddes “Statutory Interpretation in Australia 6th edition at page 155 such clauses are used as an aid to the construction of legislation.”
6. A manifest difficulty in dealing with the Respondent’s impairments is that her original application for DSP was lodged on 28 February 2005. Section 42 and Schedule 2 to the Social Security (Administration) Act 1999 provide inter alia that the Tribunal can only consider a person’s entitlement to DSP for the period of 13 weeks commencing on the date that the claim is made. The absurdity of the Tribunal in June 2008 attempting to ascertain and having to base its decision upon the Applicant’s medical status in the period 28 February 2005 to 30 May 2005 is self evident.
7. What is clear from the evidence given by the Applicant’s witness Mr Henry, the job capacity assessor who prepared two reports on the Respondent’s ability to work, those reports being dated 12 February 2007 and 6 December 2007 is that at the relevant time the Respondent had a continuing inability to work in that she was then and in the future unable to work 30 or more hours a week.
8. In these proceedings the Applicant conceded that the impairment rating of 10 points allocated to the Respondent’s chronic venous insufficiency and antiphosholipid antibody syndrome was correct.
9. The Respondent informed the SSAT that she had suffered asthma since childhood. Dr Lingwood of Health Services Australia in a report dated 18 April 2005 said of this condition:
“Asthma/COPD. She has had asthma since she was a child, but has recently noticed increasing shortness of breath on exertion. She gets breathless with nearly all daily activities and housework. Her doctor has just diagnosed her with COPD and started treatment with Spiriva one week ago (in addition to the Pulmicort and Ventolin she usually takes). I am thus regarding the functional incapacity as temporary as her symptoms may improve with the new treatment…”
10. In accordance with paragraph 4 of the introduction to the Tables in Schedule 1B no impairment rating could be allocated to this condition in that it could not be said to have been treated and stabilized.
11. The Respondent does have hypertension but this is under control with medication therefore an impairment rating of NIL is allocated to this condition.
12. The real question for the Tribunal was whether the Applicant’s psychiatric illness attracted an impairment rating of 10 or more under Table 6 in Schedule 1B.
13. Fundamental to the assessing of any impairment rating is the criteria imposed by paragraphs 4 and 5 to Schedule 1B. They read:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”
14. Neither paragraphs 4 or 5 above requires that the treatment of any disease be “optimal”. All that is required is that it be diagnosed, treated and stabilised. Just what is meant by the word “stabilised” is unclear as some conditions by their very nature have a waning and exacerbation of signs and/or symptoms [for an example see Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533].
15. As to diagnosis we note that paragraph 4 of the Introduction only requires a “working diagnosis”. This case is a very good example of the validity of that approach. The Respondent’s general practitioner diagnosed and treated the Respondent for “Anxiety/Depression”. This “diagnosis” was criticised by Psychiatrist Dr Prior as not being a diagnosis but a description of the symptoms. The diagnostic descriptor Anxiety/Depression may not appear in the Diagnostic and Statistical Manual of Mental Disorders but it was for the purposes of the Respondent’s general practitioner a practical working diagnosis and she proceeded to treat the Respondent under this general descriptor.
16. A treating doctor’s report dated 24 June 2004 by Dr Gordon refers to the Respondent suffering “Anxiety” and being treated with Zoloft. He records a history of “worried about work, depressed, tiredness related to stresses at work”.
17. On 11 November 2004 Dr Au, a Medical Practitioner with Health Services Australia completed an assessment report upon the Respondent. Under the heading “Anxiety” he recorded:
“Relevant events in the past include long standing friction in the family. This is a long-term condition. There are symptoms since 1999. Her medications include Zoloft. Non-drug treatment includes counselling by family doctor. She has not been admitted to hospital for this condition. She was cooperative today. She coped well with interview. Her mood was appropriate and normal.”
Dr Au continued:
“She described reduced ability to cope with stress. She did not describe panic attacks. Ms Peterson is not suicidal. She described reduced self esteem.”
And Dr Au concluded in this part of his report by stating: “There are moderate regular symptoms with some difficulty in functioning” and allocated an impairment rating of 10 to this condition under Impairment Table 6.
18. In his report of 18 April 2005 Dr Lingwood stated:
“Anxiety/Depression. She was unwell with a very low mood and severe anxiety symptoms about 3-4 years ago. She has since had treatment with counselling and Zoloft and reports that her symptoms have improved. She at times still has a low mood at times and ‘gets stressed’, but on the whole is stable on her current treatment. This condition is permanent with an impairment rating of 0.”
19. Subsequent to the decision of the SSAT the Applicant caused the Respondent to be examined by Psychiatrist, Dr Prior. In his report of 13 November 2006 he opined that the Respondent suffered a Chronic Adjustment Disorder with Anxious and Depressed Mood.
20. In Dr Prior’s opinion the Respondent’s condition had not stabilized nor had it been fully treated in that she had never seen a treating psychiatrist, nor was she currently receiving psychological therapy. At page 10 of his report he stated: “Optimal treatment of her chronic adjustment disorder is the resolution of the underlying problems that are precipitating it…”.
21. Exhibit R1 in these proceedings is a report from Dr Pelichowski of the Psychiatry Unit of Blacktown Hospital. That report states that the Respondent had an acute admission to Blacktown on 6 March 2007 and a diagnosis of Bipolar Disorder was made. We are of course unable to take this new diagnosis into account in assessing impairment for the purposes of these proceedings.
22. The Diagnostic and Statistical Manual of Mental Disorders edition IV in discussing Adjustment Disorders states:
The word “Chronic” This specifier can be used to indicate persistence of symptoms for 6 months or longer. By definition, symptoms can not persist for more than 6 months after the termination of the stressor or its consequences. The chronic specifier therefore applies when the duration of the disturbance is longer than 6 months in response to a chronic stressor or to a stressor that has enduring consequences.”
23. Dr Prior opined that optimal treatment of the Respondent’s Chronic Adjustment Disorder was a resolution of the underlying problems precipitating it. We do not intend, for reasons of the Respondent’s privacy, to state the underlying problems but they are past and incapable of being resolved that is to say they were events which in the terms of DSM-IV “had enduring consequences”.
24. To our mind whereas Dr Prior may differ in his opinion as to the classification of the Respondent’s psychiatric illness as opposed to those of the Respondent’s treating Medical Practitioners the classification of those treating medical practitioners was a working diagnosis. The treatment is not required to be optimal but there was both counselling and the prescription of medication.
25. Dr Coote in her report of 17 February 2005 suggested that improvement was expected, however Dr Lingwood opines that the conditions are permanent and given their chronicity (as recognized by Dr Prior), we find that the Applicant’s condition was unlikely to improve.
26. Section 42 and paragraph 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 limits the time in which a persons entitlement to the payment of a social security payment may be considered to 13 weeks after the day on which the claim is made. This does not mean however that consistent with the judgment of the majority in the case of Shi v Migration Agents Registration Authority (2007) 158 FCR 525 the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review (or in this case the “window” of entitlement) provided that evidence bears on the merits of the Decision as at the time it was required to be made. (see Nicholson J at 158 FCR p 532 proposition 8).
27. The evidence in this matter is all one way. The Applicant did not experience the improvement Dr Coote had envisaged. And Dr Lingwood was correct in his opinion that the condition was permanent.
28. Dr Coote, the Respondent’s then General Practitioner in her report of 17 February 2005 refers to Anxiety/Depression and states the treatment was the prescription of Zoloft (a well known anti-depressant). We also note Dr Coote referred to the Respondent’s hypertension being made worse by anxiety. We are satisfied that at the time the Respondent made her claim her then psychiatric illness had been diagnosed and treated and given the reports of Drs Gordon, Au and Lingwood stabilized and was permanent.
29. Dr Au in November 2004 gave the Respondent a rating of 10 points pursuant to Table 6 of Schedule 1B. The criteria for the allocation of 10 points are:
“Moderate and regular symptoms and generally functioning with some difficulty. (eg. Noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. Short periods of absence from work).”
30. So far as psychiatric intervention is concerned we note the word used is may. In other words ongoing supervision by a general practitioner without specialist referral is recognized and an Applicant should not be disqualified by the failure of a treating doctor to obtain a specialist’s opinion.
31. We are satisfied that the degree of incapacity suffered by the Respondent as detailed in the various medical reports and the summation of her evidence to the SSAT justifies an impairment rating of 10 under Table 6 to Schedule 1B SSA.
32. As the Respondent had a combined impairment of 20 points and a continuing inability to work as at the date of her application the decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe
Signed: [sgd] [sgd] sgd .....................................................................................
Mwela Kapapa, AssociateDate/s of Hearing 13 March 2008 and 16 June 2008
Date of Decision 4 July 2008
Solicitor for the Applicant Centrelink Legal Services
Solicitor for the Respondent Mt Druitt & Area Community Legal Centre Inc
0
2
0