Prestt and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4425
•31 October 2019
Prestt and Secretary, Department of Social Services (Social services second review) [2019] AATA 4425 (31 October 2019)
Division:GENERAL DIVISION
File Number: 2018/4019
Re:Gerald Prestt
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:31 October 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – numerous physical and mental health conditions – whether fully diagnosed, treated and stabilised – reasonable treatment - reference to clinical treatment guidelines – some, but not all, conditions found to be permanent - conditions did not give rise to an impairment rating of more than 20 points under one or more Impairment Tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Health and Medical Research Council Act 1992 (Cth)Social Security Act 1991 (Cth)
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Petrovic and Secretary, Department of Social Services [2018] AATA 748Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Gin S Malhi et al, Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders, Australian and New Zealand Journal of Psychiatry 2015, Vol. 49(12) 1-185Phoenix Australia - Centre for Posttraumatic Mental Health, Australian Guidelines for the Treatment of Acute Stress Disorder and Posttraumatic Stress Disorder, Phoenix Australia, Melbourne, Victoria – 4 July 2013
REASONS FOR DECISION
Member K. Parker
31 October 2019
INTRODUCTION
This application is about whether the Applicant, Mr Gerald Prestt, was eligible to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act) as at the relevant qualification period. The qualification period in this case commenced when Mr Prestt made his claim for DSP on 27 September 2017 and continued for 13 weeks, until 27 December 2017 (Qualification Period).
Mr Prestt was involved in a serious workplace accident while working at the 2003 Australian Grand Prix event in Melbourne and suffered significant physical injuries after his foot was run over by a forklift. He received workers’ compensation in respect of these injuries and a common law payout in 2010 in the sum of $700,000.[1] Mr Prestt had a number of surgeries performed on his injured left leg, but he continued to experience significant pain. His left leg was subsequently amputated below the knee in 2008. Since that time, Mr Prestt has used a prosthetic to enable him to walk, which he wears for about 12 hours each day. He lives alone in Pakenham (a suburb of Melbourne). His parents live in Keysborough (which is a 25-minute drive away from Mr Prestt’s house).
[1] Refer T-Documents T5/25-30.
Arising from this accident and other traumatic events in Mr Prestt’s life, namely, a relationship breakdown which resulted in him being separated from his children for considerable periods of times, Mr Prestt developed some mental health issues. On two occasions (before and after the Qualification Period), he was admitted to a psychiatric unit (St John of God – Pinelodge Clinic), which was reportedly of benefit to him. In addition to the left leg, Mr Prestt also suffered from a range of other physical conditions, including conditions affecting his heart and respiratory system and a condition that affected his ability to sleep (i.e. obstructive sleep apnoea (OSA)).
Gleaning from the evidence, Mr Prestt has suffered from over ten different medical conditions which include the following:
(a)post traumatic stress disorder (PTSD);
(b)major depressive disorder;
(c)amputated left leg (below knee);
(d)various heart conditions: unstable angina, ischemic heart disease (IHD), non-ST-elevation myocardial infarction (NSTEMI), mild aortic dilation with mild aortic regurgitation;
(e)hypothyroidism;
(f)type II diabetes;
(g)hypertension;
(h)OSA;
(i)chronic obstructive pulmonary disease (COPD);
(j)hepatosplenomegaly (a disorder where the liver and spleen swell beyond their normal size);
(k)non-Hodgkin’s lymphoma; and
(l)gastro-oesophageal reflux disease (GORD).
Mr Prestt’s treating general practitioner, Dr Zahoor Ahmad, in his medical report dated 13 November 2018, stated that Mr Prestt’s “impairments for work” included his depression, OSA and COPD and “aortic dilatation with chest pains”.[2]
[2] Refer Exhibit “A3”.
When Mr Prestt addressed the Tribunal at the hearing, he was mainly focussed on his conditions of PTSD; depression and anxiety; his amputated leg (below-knee); his heart and his sleep disorder. In Mr Prestt’s Claim for DSP, signed by him and dated 26 September 2017, he listed the following when asked to “list any disabilities, illnesses or injuries that you have”:[3]
(a)“Left below knee Amputation”;
(b)“Chronic Low Back Pain with Degenerative Disc Disease”;
(c)“Hypothyroidism (Post Thyroidectomy)”;
(d)“Depression”;
(e)“type 2 Diabetes”;
(f)“Hypertension”;
(g)“IHD with mild Aortic Aneurysm”;
(h)“Splenomegaly”.
[3] Refer T-Documents T37/137.
The original decision by Centrelink, the Federal Government agency responsible for administering the DSP, to reject Mr Prestt’s DSP claim was made on 13 November 2017.[4] On 8 February 2018, Mr Prestt requested that this decision be reconsidered. An authorised review officer (ARO) reconsidered the original decision and affirmed it on 19 April 2018.[5] Mr Prestt lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 24 April 2018. On 13 June 2018, Mr Prestt appeared in person at the AAT1 represented by an advocate from EACH.[6] On the same day, the AAT1 made a decision to affirm the ARO’s decision to reject Mr Prestt’s claim for DSP (decision under review).[7] Mr Prestt sought review by the General Division of the Administrative Appeals Tribunal (this Tribunal) by lodging an application for review on 16 July 2018.[8]
[4] Refer T-Documents T39.
[5] Refer T-Documents T25.
[6] EACH is a community-based organisation that provides a range of health, disability, and counselling and community mental health services across Australia.
[7] Refer T-documents T2.
[8] Refer T-Documents T1.
On 25 July 2018, the Respondent, Secretary, Department of Social Services (Secretary), lodged a set of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which will be referred to as the T-Documents. On 7 March 2019, the Secretary’s representative lodged a Statement of Facts, Issues and Contentions (Secretary’s SFIC).
A hearing took place before this Tribunal on 2 April 2019. Mr Prestt was unrepresented. It was identified at the hearing that some critical medical evidence was missing. The application was adjourned (part-heard), and relisted for a resumed hearing on 2 May 2019. Arrangements were made for Mr Prestt’s treating general practitioner and psychiatrist to give evidence by telephone at the resumed hearing.
At the hearing on 2 April 2019, Mr Prestt also lodged further documents which had not been disclosed to the Secretary’s representative prior to the hearing. The Tribunal made directions which allowed for the Secretary to lodge any further submissions about those documents.
On 11 April 2019, the Secretary’s legal representative lodged further submissions (Secretary’s Further Submissions) and a number of further documents including:
(a)a 185-page article by Gin S Malhi et al entitled Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders which was published in the Australian and New Zealand Journal of Psychiatry 2015, Vol. 49(12) 1-185 (RANZC Guidelines); and
(b)a 175-page document: Phoenix Australia - Centre for Posttraumatic Mental Health. Australian Guidelines for the Treatment of Acute Stress Disorder and Posttraumatic Stress Disorder. Phoenix Australia, Melbourne, Victoria (Treatment Guidelines). The Treatment Guidelines were approved by the Chief Executive Officer of the Australian Government National Health and Medical Research Council (NHMRC) on 4 July 2013 under Section 14A of the National Health and Medical Research Council Act 1992 (Cth); and
(c)two further documents entitled “Major Depressive Disorder” (3 pages) and “Posttraumatic Stress Disorder” (2 pages) sourced from “DynaMed [Internet]” containing a list of treatment option for those disorders. DynaMed is an American online “clinical decision support tool”.
The resumed hearing took place on 2 May 2019.
Based on the evidence and taking into account the oral and written submissions of the parties, this Tribunal has concluded that Mr Prestt did not meet the eligibility requirements to receive the DSP as at the Qualification Period for the reasons explained below. Accordingly, this Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP (as relevant to this application):
(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
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)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.
“Impairment Tables” is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years. The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Section 6(1) of Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do; not on the basis of what the person chooses to do or what others do for the person. Section 6(2) also provides that the person’s medical history must be considered before applying the Impairment Tables to a person’s impairment.
Further, section 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Section 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined are:
(a)whether Mr Prestt had any physical, intellectual, or psychiatric impairments as at the Qualification Period;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years) as at the Qualification Period;
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether Mr Prestt had a continuing inability to work; and
(e)unless the Tribunal finds that Mr Prestt had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one Impairment Table), whether he had satisfied the program of support requirements.
EVIDENCE
Mr Prestt’s oral evidence
Mr Prestt gave oral evidence at the hearing on 4 April 2019 and 2 May 2019. His evidence was that during the Qualification Period:
(a)he was living alone;
(b)he cooked meals for himself, but about twice week he would order take away food. He said that sometimes he skipped dinner. He also said his parents would visit him (from their home in Keysborough) about once a week;
(c)he said that his mother and father would bring him groceries every week and that he would only buy extra groceries as needed;
(d)he said he was independent with his self-care and grooming and that he had a prosthetic leg he would wear in the shower, but had slipped a few times. He said he thought the depression had affected his self-care and that in 2017 he had neglected brushing his teeth for a couple of days and that he was showering once every two days;
(e)he said that his mother was cleaning his shower and bathroom in 2017 and that his mother would do the vacuuming. He said he got along with his parents and they had supported him. The Tribunal notes that Mr Prestt’s father attended the hearing on 2 April 2019 to support his son;
(f)he said he ran out of breath mowing the lawn. He said he tried to look after his garden and that a “lady from the NDIS was coming in to look at that”;
(g)he said that socially, he went to the Men’s Shed at Pakenham for a couple of days a week. He said he “chatted with other men there and did woodwork”. He said he started going there in February 2017 and got along well with the other men. He said that other than this, he did not socialise very much. He said that during the Qualification Period he was not seeing his children;
(h)when driving his car, Mr Prestt said that he had a couple of incidents of “road rage” during the Qualification Period due to the change in his medication, which he said made him agitated and “short-fused”. He said he preferred to drive locally as he preferred to be at home;
(i)he said he could not focus for more than 20 minutes but “if things did not go right”, he would get frustrated and walk away from what he was doing. He said he used to read books, but he stopped about ten years ago. He said he watched a lot of television (i.e. videos and movies), but would fall asleep during a movie;
(j)he said he looked after his own bills and had set up automatic direct debits for them;
(k)he said a case worker from EACH had helped him to complete his DSP claim form, because his “concentration was not there”.
Mr Prestt confirmed that he had participated in a “work trial” in 2016. He said he got along with the people in the workplace. He said it was an assisted workplace. He said he would not be able to cope in a workplace that was not supportive of his mental and physical conditions because someone might say the wrong thing and he would retaliate, which he said was how he was feeling back in 2016. He said he had some days and bad days when he did not want to be there.
Mr Prestt said he did not think he would be able to work 15 hours per week. He said he had to have an afternoon nap. He confirmed that he was getting a full night’s sleep but would come home from the work trial at 1pm and sleep until 4pm because it exhausted him and because of his depression. He said he was able to make it into work in the mornings because he knew he had to be there.
The Tribunal asked Mr Prestt at the hearing on 4 April 2019 to confirm the extent of his physical impairment during the Qualification Period. Mr Prestt said that he could only walk around the block which would take ten minutes and did not take his dog to the park as it was too far away. He said he would drive to the local shops because it was too far to walk. He said his maximum walking distance was “about a ten minute walk”. He said if he walked further than this, his left leg stump would “play up” such that it would become hot, sweaty, start to rub and cause blisters on the stump. He said he would need to air out the stump and sterilise it with cream.
Mr Prestt told the Tribunal he did not need to drive a modified car because he had a restriction on his driver’s licence permitting him to drive only an automatic car. He said he could get into and out of a car.
The Secretary’s representative asked Mr Prestt in cross-examination about a statement that had been made by Dr Kirsty Adams, a rehabilitation physician that had examined Mr Prestt that she considered that Mr Prestt had “excellent standing tolerance” and could walk for 30 minutes. Mr Prestt said, “I said to her that wasn’t the case and she hasn’t taken into consideration what I have said to her”. The Secretary’s representative also put to Mr Prestt that Ms Sue Tansey, his treating psychologist, had stated in her medical report dated 10 July 2017 that Mr Prestt had told her he walked his dog for up to an hour. Mr Prestt responded, “I think I did tell her that”, and then Mr Prestt explained to the Tribunal:
I was having problems with the leg because of shrinkage on the stump – I had to go back to Caulfield to get it adjusted – I reduced my walking because I didn’t want the rubbing, so I was walking for 10 minutes.
Mr Prestt accepted that he had “probably” told the AAT1 in June 2018 that he could walk for 30 minutes. Ultimately, following this line of questioning, Mr Prestt accepted that he could walk for 30 minutes, but did not accept that he could walk for up to an hour. The Tribunal finds that Mr Prestt’s walking tolerance as at the Qualification Period was that he could walk for up to 30 minutes.
Mr Prestt also accepted that he could use stairs if there was a handrail, but it would take him time to use them; he said he could only climb about ten steps at a time; and he had fallen several times previously when using steps.
Mr Prestt said that he had the capacity to stand for 10 to 15 minutes as at the Qualification Period. He said that now he could only stand for 10 minutes because he had to stretch out his back, because he had lower back problems.
Dealing with issue of breathlessness, Mr Prestt told the Tribunal at the hearing on 2 April 2019 that he was could walk for about 300 metres before needing to stop and catch his breath. He said when he was mowing a courtyard-size patch of grass at his house, he was short of breath. He said he was able to carry a light bag but if it was too heavy, he would not lift it. He said he experienced shortness of breath climbing steps and said that “this is where the COPD comes into play”. He said he only did small woodwork projects at the Men’s Shed. Mr Prestt said he was able to wash his own clothes and hang them on the line.
Regarding the sleep apnoea, Mr Prestt told the Tribunal that he had tried the CPAP (i.e. continuous positive airway pressure) machine at the chemist about five months ago for about a week and that it did not help him. He said that he was supposed to use it continuously but he could not afford to buy it as it was $2,500. Mr Prestt said he was waiting to be provided with a CPAP machine under the NDIS.
Mr Prestt said he had starting seeing Dr Rajiv Sharma, respiratory and sleep specialist, a few months ago. The Secretary’s representative pointed out that a medical report had been issued by Dr Sharma dated 1 November 2017 (i.e. 15 months prior). The Tribunal asked Mr Prestt whether this was an example of how Mr Prestt had struggled with his memory to which he said it was and that he had struggled with his memory for the last two to three years.
Regarding the diabetes condition, Mr Prestt claimed that it made him fall asleep. He said he had been on diabetes tablets for a while which he took in the morning and at night. He said his diabetes level had been too high. No other functional impacts were identified by Mr Prestt at the hearing arising from this condition.
Regarding his liver condition, Mr Prestt said he had experienced pain on his right side for a long time and that he had “really sharp pains” during the Qualification Period. He said he had an X-ray which showed up lesions. He said it would stop him from doing things and he would wait for the pain to subside. He said he got this pain about twice a week and would take Panadol. He said he had an enlarged spleen which was being investigated. He said that his current treating general practitioner, Dr Zahoor Ahmad, wanted to send him to someone else. At the hearing, Mr Prestt accepted that this condition was not fully diagnosed and agreed that it could not be counted in the present assessment.
In relation to the asthma attacks, Mr Prestt confirmed that he took Symbicort (inhaler) for COPD. He said he had a lung function test in February 2018 but they had trouble testing him. He said he had a heart turn and ended up in hospital. He said they were still investigating this.
Mr Prestt told the Tribunal that he had his thyroid gland removed because he had goitre and nodules growing on it. As a result, he said he continued to have hormone replacement therapy (Thyroxine). Mr Prestt said he managed this condition and that the Thyroxine was controlling it. He said he had to take these tablets for the rest of his life. Mr Prestt accepted there was no functional impairment arising from this condition.
Mr Prestt also accepted that his condition of GORD was also being managed.
Mr Prestt said he was on blood pressure medication for hypertension which was diagnosed in 2006. He accepted that this condition was “under control”, although his blood pressure had been “high lately”.
At the end of the hearing on 4 April 2019, Mr Prestt said he had struggled with being able to work for 15 hours per week. He said it was hard for him to stay focussed for long periods of time.
Dr Zahoor Ahmad, treating general practitioner
Dr Ahmad is Mr Prestt’s treating general practitioner. Dr Ahmad said he started treating Mr Prestt in 2014. He gave oral evidence at the resumed hearing of this application on 2 May 2019 and was asked about his consultations with Mr Prestt during the Qualification Period.
Dr Ahmad said he saw Mr Prestt on 5 October 2017. He said they discussed the blood test results showing increased sugar levels. He said his diabetes medication was changed. Dr Ahmad also indicated that Mr Prestt had reported a shortness of breath which he said Mr Prestt had complained of over the previous few months. Dr Ahmad said that on 24 October 2017 he organised for the sleep studies to take place and for a cardiologist to review Mr Prestt. Dr Ahmad told the Tribunal that Mr Prestt was diagnosed with COPD and OSA by another specialist. In relation to the shortness of breath, Dr Ahmad said that originally they thought it might have been a heart problem, so Mr Prestt was referred to a cardiologist. He said the cardiologist thought it might have been a respiratory problem, which led to a further referral to investigate this further.
Dr Ahmad said that Mr Prestt also complained of tiredness. He said his blood pressure was stable and that it was thought that it might have been caused by the OSA.
When asked whether there were any issues arising in relation to the left lower leg prosthesis, Dr Ahmad said there were “no issues”. He said he did not ask Mr Prestt at that time (i.e. in October 2017) how far he was able to walk.
When asked about Mr Prestt’s mental health, Dr Ahmad said that he had “long ongoing depression” for which he was taking medication and had been referred to a psychiatrist. Dr Ahmad said he did a mental health plan for Mr Prestt in December 2017. Dr Ahmad said that Mr Prestt had been stable on medication until December 2017. He gave evidence that had referred Mr Prestt to a psychiatrist in December 2017 because his mood had gone down. He said Mr Prestt thought a psychiatrist could help him with this and that he wanted his medications reviewed, because he had been on them for such a long period of time.
When asked whether he had ever referred Mr Prestt to a psychiatrist before that time, Dr Ahmad said he was initially on a mental health plan made on 24 January 2015 where he was referred for counselling for his depression. He said there was a further mental health plan made for him in February 2015 under which he was referred to and seeing a psychologist at that time. He said this plan was reviewed on 12 May 2015. Dr Ahmad said that Mr Prestt’s mental health condition was “generally stable on meds” and that he had been “suffering chronic depression for a long time”. At the request of the Tribunal, Dr Ahmad lodged copies of the mental health plans and other records relating to Mr Prestt with the Tribunal after the second day of the hearing on 2 May 2019. The Secretary was provided with an opportunity to make further submissions in relation to those documents and lodged further submissions dated 8 May 2019 which the Tribunal has considered.
When asked whether Dr Ahmad had any record of Mr Prestt having received counselling or therapy in July 2016 or September 2017, Dr Ahmad said “no”. He said he only had a record of the counselling that took place in 2015. Dr Ahmad said he did not have a record of Mr Prestt seeing a psychiatrist between seeing Dr Kumar and Dr Siotia. Dr Ahmad said that in May 2015, Ms Kirsten Hampson, a Chaplain at Cardinia Combined Churches Caring Inc (4Cs) had recommended a psychologist referral for Mr Prestt using a government subsidy.
When asked about Dr Ahmad’s assessment of the degree of functional impact of the depression on Mr Prestt and whether he had any issues or difficulties living by himself and looking after himself during the Qualification Period, Dr Ahmad said his impression was that “he was okay with independent living, but I can’t answer specifically”. When asked about Mr Prestt’s social and recreational activities, Dr Ahmad said, “don’t know about that, at that time”. When asked whether Mr Prestt had undertaken any travel, Dr Ahmad said, “don’t know and nothing recorded”. When asked about Mr Prestt’s interpersonal relationships, Dr Ahmad said, “don’t remember”. When asked about Mr Prestt’s concentration, Dr Ahmad said he would say he had issues with poor concentration and difficulty with doing normal activities generally, but that he did not observe any particular concentration issues at the consultation with Mr Prestt. He said that Mr Prestt consistently commented about his tiredness. Dr Ahmad said he had no memory or had not recorded anything about any impact of the conditions on Mr Prestt’s planning or behaviour. When asked about any impact on his capacity for work or study, Dr Ahmad said Mr Prestt could not concentrate. He said there was nothing in his notes that indicated Mr Prestt was studying at that time. In relation to the lower limb condition, Dr Ahmad said that Mr Prestt was “limping a little but generally, he was moving okay and was able to walk his dog”.
Dr Kirsty Adams, rehabilitation physician
Dr Adams is a rehabilitation physician at Caulfield Hospital. Dr Adams prepared a medical report dated 9 January 2017 stating that Mr Prestt had been a left trans-tibial amputee since 2008; this condition was stable from an amputation point of view; and Mr Prestt was able to walk with a left trans-tibial prosthesis. Dr Adams also stated as follows:[9]
In addition to this he has been diagnosed with Non Hodgkins Lymphoma (December 2016). He is due to see the oncology team at Monash Medical Centre next week to begin oncology treatment.
[9] Refer T-Documents T30/127.
A bone marrow biopsy was performed at Monash Health on 15 February 2017.[10]
[10] Refer T-Documents T31/128.
Dr Adams prepared a second medical report dated 5 June 2017 stating that Mr Prestt wore his left leg prosthesis for 12 hours per day and was able to walk unaided.[11] Dr Adams stated that Mr Prestt had “excellent standing tolerances” and could walk for about 30 minutes before requiring a rest due to fatigue.
[11] Refer T-Documents T34/132.
CT scan of the lumbar spine
On 28 February 2017 a CT scan was performed on Mr Prestt’s lumbar spine. The report by Dr Mark Scott, radiologist, concluded that there was “relatively mild degeneration seen through the lumbar discs and facets but with the borderline L4/L5 canal stenosis”.[12]
[12] Refer T-Documents T32/130.
Dr Rajiv Siotia, treating consultant psychiatrist
Dr Siotia, consultant psychiatrist, gave evidence at the resumed hearing on 2 May 2019. He told the Tribunal he had practised as a psychiatrist since 2009. Dr Siotia said that since 2014, he had been a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He said he was also an Associate Fellow of the Royal College of Medical Administration.
Dr Siotia said he first saw Mr Prestt on 9 February 2018. He said he had seen Dr Prestt in total about 11 times as an outpatient. Dr Siotia said he saw Mr Prestt about every four to six weeks and that he did not see him between June and November in 2018.
Dr Siotia said he also saw him as an inpatient (at Pinelodge Clinic) at which time he said he saw Mr Prestt about two or three times per week (and that normally an inpatient stay would be for about two to three weeks).
Dr Siotia said that when he first consulted with Mr Prestt, he made a diagnosis of “major depressive disorder”. He said Mr Prestt had told him about the accident; his relationship breakdown and that he had seen Dr Kumar, a psychiatrist, upon being hospitalised in 2008.
Dr Siotia said that when he saw Mr Prestt in February 2018 he reported low mood and low energy levels and that he could get anxious at times. Dr Siotia said that Mr Prestt had told him he had been on medication for the last ten years (Sertraline). Dr Siotia recommended that Mr Prestt’s medication be changed to Paroxetine because he had not improved as a result of being on Sertraline for the last ten years. Mr Prestt agreed to change his medication.
Dr Siotia said that Mr Prestt informed him during the consultation in February 2018 that he was seeing a psychologist, Ms Tansey; that his mood was “up and down”; that he was social drinker, but did not take drugs; and that he had not seen his children for 14 months. Dr Siotia said he also noted down other symptoms of sleep apnoea.
When asked whether the change in medication had improved Mr Prestt’s symptoms, Dr Siotia told the Tribunal that he next saw Mr Prestt in March 2018. He said at this appointment Mr Prestt spoke about his children and told him his claim for DSP had been rejected three times, and he was worried about his financial state. He reported to Dr Siotia that he had “tried to get his meds down” and was on 200mg of Sertraline. He told Dr Siotia he felt agitated and had headaches, but they were not too bad.
Dr Siotia told the Tribunal that at the appointment with Mr Prestt in April 2018, he reported that he had “tolerated the meds alright, but was not coping very well”.
At the next appointment on 3 May 2018, Dr Siotia said that Mr Prestt spoke of financial stress. He said that Mr Prestt completed an “advance depression inventory scale test” and scored in the region of severe depression (scoring 45). He said Mr Prestt denied any suicidal planning. Dr Siotia said he “got him admitted to hospital”.
At the appointment on 15 June 2018, Dr Siotia said that Mr Prestt told him that the admission had been helpful and he was more active, sleeping better and was involved in a day program at Pinelodge Clinic. Dr Siotia said that Mr Prestt seemed a lot better and he did not see him again until November 2018.
Dr Siotia was asked whether he considered Mr Prestt’s mental health as fully stable as at February 2018 (when he first saw Mr Prestt). Dr Siotia said he understood “stable” as being not likely to get better for the foreseeable future and that on this basis, he said it was hard to say if he was stable then, because he had only taken one medication so it was hard to know if a change in medication would have helped him.
A medical report by Dr Siotia dated 22 March 2019 was produced to the Tribunal.[13] This report contained the following statement by Dr Siotia:
I can confirm that I am the treating psychiatrist for [Mr Prestt]. He suffers from Post-Traumatic Stress Disorder following a work accident in 2003. He is experiencing nightmares, flashbacks, hypervigilance and avoidance behaviours. He also suffers from Depression.
His mental health has deteriorated to a point where he had to be admitted to hospital in February 2019.
From a psychiatrist point of view, I would consider his mental health to be fully stabilised and treated. Notwithstanding the fluctuating nature of his illness, significant functional gains are unlikely to be achieved in the future.
[13] Refer Exhibit “A1”.
When asked about this medical report, Dr Siotia said that when he saw Mr Prestt in February 2019, he reported having received a “prank” text which was disturbing and had caused him to think his daughter had died (fortunately, this was not the case), after which he said Mr Prestt “became suicidal”. He said that Mr Prestt reported that the thoughts of his accident had returned, and he was admitted to hospital due to experiencing suicidal thoughts.
Dr Siotia told the Tribunal that after Mr Prestt was diagnosed with PTSD, he received some individual psychological counselling. He referred to recommendations that had been made for Mr Prestt to attend an art group as a preference. Dr Siotia said that the nature of the condition (of PTSD) was that “things may go away and come back”.
Dr Vinay Kumar, previous treating consultant psychiatrist
A medical report prepared by Dr Kumar dated 20 July 2009 was included in the T-Documents.[14] This letter confirmed that Dr Kumar started treating Mr Prestt on 7 January 2008 when he was admitted to Pinelodge Clinic, a psychiatric facility, in 2008 after spending six days at the Acacia Psychiatric Ward at Dandenong Hospital. Dr Kumar indicated in this letter that Mr Prestt was admitted to hospital after he had contacted the CATT (crisis assessment and treatment team) after having suicidal ideations. Dr Kumar stated that he had seen Mr Prestt on 23 occasions (between 7 January 2008 and 8 July 2009).
[14] Refer T-Documents T4/22-24.
In Dr Kumar’s medical report, he described the following symptoms reported by Mr Prestt at that time:
…He reported that prior to the admission to Pinelodge Clinic he had initial insomnia and early morning awakening, poor energy level and a lack of motivation to do the household chores. He described that his concentration and short term memory had deteriorated. He had become increasingly socially withdrawn. There were no psychotic nor anxiety symptoms reported on direct questioning.
Dr Kumar also referred to Mr Prestt having been placed on Paroxetine for the previous 18 months (i.e. prior to July 2009) “with little improvement” and his change to Sertraline one week prior to his admission to Pinelodge Clinic. At Dr Kumar’s initial interview with Mr Prestt, he described Mr Prestt as co-operative and friendly. He observed that Mr Prestt’s mood was low and his affect was depressed. He said Mr Prestt was not thought disordered, was neither deluded nor had any suicidal thoughts. Mr Prestt was observed by Dr Kumar to be cognitively intact with sound insight and judgment. Dr Kumar considered that as at July 2009, Mr Prestt met the criteria for diagnoses of “major depression” and “chronic pain”.
Dr Kumar’s report dated 20 July 2009 indicated that while Mr Prestt was in hospital he had decided not to proceed with an amputation because his pain levels had improved. However, after discharge from Pinelodge Clinic, Mr Prestt’s pain levels deteriorated. In March 2008 Mr Prestt was reported to have decided to have the amputation which took place on 22 August 2008. Dr Kumar opined that he considered that Mr Prestt was “emotionally stable” to undergo the procedure.
The prognosis provided by Dr Kumar at this time was as follows:[15]
I believe that from a psychiatric point of view Gerald has a good prognosis post-amputation and rehabilitation. He will require ongoing psychiatric support which I am prepared to provide.
He is positive about the future and had commenced a Bachelor of Criminology and Criminal Law at Open University. His relationship with his partner has also improved.
[15] Refer T-Documents T4/24.
Ms Sue Tansey, treating registered psychologist
Ms Sue Tansey is a registered psychologist employed by EACH. On 11 July 2017, Ms Tansey undertook a cognitive screening assessment of Mr Prestt, following which she provided him with 11 one-hour sessions of psychological therapy commencing in September 2017.
Ms Tansey prepared a report following the neuropsychological screening assessment on 10 July 2017. In terms of cognitive issues, Ms Tansey reported as follows:[16]
…Gerald indicates that for the last 2 years he has been forgetting things. For example he puts things down and forgets where he put it, he walks into a room and can’t remember what he went into the room to do or to get, and he sometimes puts things in the wrong place, for example, puts the tin of Milo in the fridge and doesn’t realise this for some time and then wonders what it is doing in the fridge, or puts something down and then can’t find it. He also reports talking to people in the midst of the conversation he forgets what he is talking about. These events occur weekly or monthly. Both his support worker and his mother have noticed this, particularly the way he seems to lose concentration during conversations. His support worker also indicated that he seems to forget the content of conversations they have. However she also reported that Gerald is able to organise paper work and present this at important meetings.
[16] Refer T-Documents T35/134.
Ms Tansey set out her conclusions in this report as follows:[17]
Gerald was referred for a neuropsychological screening due to memory and concentration lapses. He completed the [Adenbookes Cognitive Examination-ACE-III Australian Version C (2012)] and DASS. The ACE III results were within normal range. The DASS indicated mild depression and severe anxiety. Gerald’s memory lapses may be due to his age (From the age of about 45 years there is ‘normal’ increase in occasionally forgetting some specific details, for example, people’s names, forgetting why you have entered a room, etc. At the same time there is an increase in the brain’s ability to ‘see the bigger picture’.) His lapses in memory and concentration may be due to the mild depression and severe anxiety he has been experiencing.
I suggest that Gerald begin treatment with a psychologist. Psychotherapy including strategies and skills to assist him to manage the anxiety and depression may decrease the memory and concentration lapses…
[17] Refer T-Documents T35/134.
In a further letter dated 7 June 2018 (produced by Mr Prestt at the hearing on 2 April 2019), Ms Tansey stated as follows:[18]
…Gerald has Major Depressive Disorder with intermittent suicidal ideation. At times Gerald also experiences symptoms of anxiety and stress. Gerald has had this condition for many years and has been treated by at least 2 psychiatrists. Various anti-depressant medications have been trialled and Gerald has and continues to comply with all medications prescribed for him. Gerald has also attended psychological therapy with 2 psychologists. In the most recent psychological therapy Gerald has attended 11, 1 hour sessions of psychological therapy with Sue Tansey (Psychologist) as part of the MHCSS and Accessible Psychological Interventions (API) programs at Narre Warren EACH. Gerald has missed some sessions due to the impact of his mental condition. Therapy has included Cognitive Behavioural Therapy (CBT) including Mindfulness Therapy, and Interpersonal Psychotherapy (IPT). Therefore Gerald’s mental condition has been diagnosed and fully treated.
The symptoms of this condition (depressed mood, sadness, hopelessness, lack of pleasure in most activities, low energy/fatigue, decreased ability to concentrate and think clearly, suicidal ideation) impact upon Gerald’s ability to function. Gerald is usually able to self-care and lives by himself independently. Gerald does not travel very far in his car, and usually only to familiar places. Gerald socialises with his parents and occasionally extended family, friends from church, and the Men’s Shed, but he has limited contact outside of his parents or these organised events. Gerald has difficulty concentrating on any task or conversation for more than 10 minutes. This occurs regularly in the counselling sessions. Gerald’s depression, withdrawal, and suicidal ideation impact on his behaviour, planning and decision making. Gerald is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness. Gerald has Major Depressive Disorder that was diagnosed many years ago, and which has been full treated. Gerald’s condition and the symptoms he experiences are unlikely to improve further, and the functional impact of Gerald’s condition is unlikely to change over the next 2 years.
I therefore support Gerald’s application for the DSP…
[18] Refer Exhibit “A2”.
Dr Rajiv Sharma, respiratory & sleep medicine services specialist
Dr Sharma reviewed Mr Prestt in January 2018 and 19 March 2018. Medicare records produced to the Tribunal record that Mr Prestt also saw Dr Sharma on 1 November 2017 (falling within the Qualification Period), and 8 February 2018. The Tribunal was provided with a copy of Dr Sharma’s medical report dated 19 March 2018 confirming that Mr Prestt had the following respiratory and sleep issues:
(a)“severe symptomatic obstructive sleep apnoea with AHI of 44 and nadir oxygen saturation of 74%”;
(b)“asthma/COPD”; and
(c)other cardiovascular comorbidities (not specified).
Dr Sharma stated that he had given a script to Mr Prestt for “a trial of APAP, followed by CPAP” for four weeks.[19] Mr Prestt said he did not proceed with this treatment for financial reasons.
[19] APAP means automatic positive airway pressure.
Dr Sharma performed a respiratory function test on Mr Prestt in February 2018. The test showed “a mild obstructive ventilator defect with no significant bronchodilator response. Gas transfer was mildly reduced. This may be consistent with his underlying asthma/COPD”. Dr Sharma gave Mr Prestt another script for a trial of APAP and CPAP for when his finances allowed, and also a script for a Symbicort Turbohaler 200/6 mcg two puffs b.d. He said he would see Mr Prestt again after his trial.
Ambulatory Sleep Study Report
On 1 November 2017, Mr Prestt underwent an ambulatory sleep study as arranged by Dr Sharma. Mr Sharma issued a report setting out his conclusions from the results of the sleep study as follows:[20]
Severe OSA – recommendations: AHI >30
1. A trial of CPAP therapy is RECOMMENDED.
2. Subsequent assessment of efficacy (e.g. CPAP machine download/repeat study with CPAP/overnight Oximetry).
3. General measures of sleep hygiene optimisation and avoidance of alcohol and sedatives should be implemented.
4. Weight reduction recommended.
5. Referral for review by a sleep physician is recommended if symptoms are persistent or concerning.
6. Trial side-sleeping.
[20] Refer T-Documents T42/157.
Stress Echo Report
A baseline echo study; exercise stress test and exercise stress echo study was performed on Mr Prestt on 11 November 2017. Dr A. V. Ng, cardiologist, reported the following conclusions:
1. Normal resting left ventricular systolic function.
2. Inconclusive exercise stress echocardiogram as patient achieved <85% of targeted heart rate. No clinical or echo criteria for ischemia at submaximal test.
Hospital admission for chest pain
Mr Prestt was admitted to hospital for one day in January 2018 for symptoms of chest pain during which a CT of his thorax was performed. The discharge summary for this admissions signed by a treating doctor and Registrar stated that the testing did not reveal any evidence of acute aortic syndrome.[21]
[21] Refer T-Documents T43/164.
Pulmonary Function Analysis
Mr Prestt underwent a pulmonary function test on 8 February 2018. The technician who performed the test noted that Mr Prestt’s “technique and effort” in performing the test was “fair”. Dr Sharma provided a report stating as follows:[22]
Spirometric results showed mild obstructive ventilator defect. There was no significant change following inhaled bronchodilator on this occasion. CO Diffusion was mildly reduced.
This may be related to COPD. Clinical correlation is recommended.
[22] Refer T-Documents T42/155.
Dr Ai Ng, consultant cardiologist, prepared a letter dated 17 February 2018 following a review undertaken of Mr Prestt’s heart. After noting some aspects of Mr Prestt’s background, Dr Ng opined as follows:[23]
He states recently he presented once again to Monash Health with chest pain. He was admitted for unstable angina and they again did a coronary angiogram, but did not put a stent in, did not change any of his tablets as he states and that does not quite suggest to me that they think it is related to his heart. If fact, I got the CT coronary angiogram done in 2018 and they only show minor disease in the LAD. I will be surprised that it has been severely stenosed by now so I do not think likely that he has any significant coronary artery disease. He does have a dilated aortic root and ascending aorta as mentioned on his CT scan so we are going to monitor that by doing an Echocardiogram and measure the size of the aortic root and ascending aorta.
On examination, his blood pressure is still well controlled at 120/80 mmHg. His heart rate was 70 bpm, but regular. His chest was otherwise clear and his heart sound was dual. So clearly he is medically stable and I will review him following the Echocardiogram.
[23] Refer T-Documents T43/165.
Echocardiogram
Mr Prestt had an echocardiogram on 1 March 2018 from which Dr Ng reported the following conclusions:[24]
1. Normal left ventricular size, wall thickness and systolic function.
2. Mild aortic regurgitation.
3. Mildly dilated aortic root and ascending aorta.
[24] Refer T-Documents T42/152&153.
ARO review in April 2018
The Tribunal notes the reference in the Notes taken down by the ARO of his conversation with Mr Prestt on 19 April 2018. Those Notes record that Mr Prestt told the ARO at this time that in relation to the condition of IHD, he was under specialist care “just for monitoring” and that “surgery is recommended if the dilated aortic is more than 4cm but his dilated aortic is only 3.6cm at present”.[25]
[25] Refer T-Documents T44/166.
The ARO stated in these Notes that he had spoken to Dr Ahmad on 19 April 2018 who had advised the ARO as follows:
- Depression: he has referred Gerald to see a psychologist but no reports available confirming Gerald had seen a psychologist in 2016 and 2017. He has referred to a psychiatrist at Pinelodge Clinic on 6/12/2107. However he had not received any report from the psychiatrist therefore cannot confirm if Gerald has seen the psychiatrist.
- IDH: Gerald has been monitoring(sic) by the Cardiologists at Monash, with the last review was recently in 2018. He agreed to fax me the latest reports from the Cardiologist. Surgery is not recommended and Gerald continues to take Aspirin and medication for his cholesterol. He gets chest pain occasionally but has mild symptoms due to aneurysm.
- Fatty liver: has annual reviews at Monday, no current treatment, and no functional impact.
- Back pain: flared up of low back pain last year but is ok now with no functional impact. He had 4 physiotherapy sessions last year.
- Non Hodgkin Lymphoma: no confirmation so far from any specialists.
The ARO found that Mr Prestt’s conditions of the below-knee amputation and IHD were permanent conditions but his conditions of depression, liver disorder, sleep apnoea, and Type II Diabetes were not. The ARO considered that the amputation had caused a lower limb impairment attracting a rating under Table 3 of 5 and the IHD attracted a rating under Table 1 of zero because the Stress Echo report had concluded that Mr Prestt had a limited tolerance for exercise and the recently diagnosed COPD may be contributing to his fatigue.[26]
[26] Refer T-Documents T44/167.
Medical treatment
The Tribunal has taken into account a medical report prepared by Ms Liz Plail, psychologist, dated 21 September 2015 confirming that Mr Prestt attended four sessions of counselling with her. Ms Plail described her sessions with Mr Prestt as follows:
…I have utilised solution focused strategies to address cognitions. I agree that he presented with depression and a behavioural based approach was thought to be most useful to him. We utilized exercise and a biopsychosocial model of management of his situation. Mr Prestt was confused about my role through ATAPs despite giving him a handout and discussing this at the first session. He requested a legal assessment and report to help him with financial matters in settling with his expartner. Unfortunately, he was dissatisfied with this outcome. I was uncertain about the extent he was able to understand the information that I presented, but he did show some positive gains from becoming more active. I encouraged him to explore community based activities such as Men’s Shed. He continues to be a very active volunteer at the 4C’s crisis centre…
Mr Prestt attended a further four sessions of counselling with Mr Edward Gallagher on 4 February 2016, 11 February 2016, 3 March 2016 and 7 April 2016.[27]
[27] Refer Medicare records showing dates (and provider names) of medical and health care appointments attended by Mr Prestt and subsided by Medicare.
Mr Prestt has taken Zoloft (Sertraline) medication for a period of eight years from the time he ceased receiving treatment by Dr Kumar, psychiatrist, in 2009 and when he started treatment with Ms Sue Tansey, psychologist, in September 2017. In February 2018 his anti-depressant medication was changed to Paroxetine as recommended by current treating psychiatrist, Mr Siotia.
Mental Health Plans
The Tribunal had access to three Mental Health Plans that were prepared by Dr Ahmad for Mr Prestt dated 24 January 2015, 12 May 2015 and 3 February 2016 respectively. Those forms described the “problem” as “depression” (and on the last of those forms, as “depression/adjustment disorder”). On those dates, a K10 assessment tool was completed by Mr Prestt, yielding scores of 23/50; 42/50 and 31/50 from the earliest to most recent reports.
At the hearing on 4 April 2019, Mr Prestt told the Tribunal that Dr Siotia had recommended that he participate in group cognitive behavioural therapy which he commenced in February [2019] on a weekly basis.
Treatment Guidelines
The Treatment Guidelines referred to in paragraph [11(b)] were endorsed by: The Australian Psychological Society; The Royal Australian College of General Practitioners; and The Royal Australian and New Zealand College of Psychiatrists. The Secretary’s representative produced these guidelines to the Tribunal in support of his contention that Mr Prestt’s claimed PTSD was not fully treated as at the Qualification Period.
The Treatment Guidelines stated as follows:
In approving these guidelines the NHMRC considers that they meet the NHMRC standard for clinical practice guidelines. This approval is valid for a period of 5 years. NHMRC is satisfied that they are based on the systematic identification and synthesis of the best available scientific evidence and make clear recommendations for health professionals practising in an Australian health care setting. The NHMRC expects that all guidelines will be reviewed no less than once every five years.
This publication reflects the views of the authors and not necessarily the views of the Australian Government.
The Tribunal sought confirmation from the Secretary as to whether the Treatment Guidelines had been reviewed and updated since July 2013. The Secretary’s representative made due inquiries with the NHMRC. The NHMRC responded to the Secretary’s representative as follows:
NHMRC approval of the 2013 guidelines lapsed in 2018.
The 2013 guidelines are currently being updated by Phoenix Australia and are expected to be released for public consultation in 2020.
NHMRC cannot comment on which if any treatments outlined in the 2013 guidelines are current, however I understand it is a fast moving clinical field.
…
Employment Services and Job Capacity Assessments
ESA – 11 August 2015
On 11 August 2015, Mr Prestt underwent an employment services assessment (ESA) with a registered psychologist and an ESA report was issued the same day. In relation to the below-knee amputation of his left leg, the assessor recorded that Mr Prestt wore his prosthesis most the time but occasionally, he used a wheelchair e.g. if the stump became infected. The assessor also reported as follows:[28]
The client indicated that walking is not a problem but he needs to sit down after 30 minutes, that he is unable to kneel down, that sitting for long periods is not a problem, and he is able to drive an automatic car. The client indicated that this would affect the type and amount of work that he can manage.
[28] Refer T-Documents T16/82.
The assessor also listed a further “permanent” condition of “depression” and reported that Mr Prestt’s GP had reported “major depression” which was said to be diagnosed in 2013. The assessor stated that Mr Prestt had reported that he had taken antidepressant medication through his GP since 2007; that he got support from “Partners in Recovery” and the condition was “generally stable”. The assessor described the “current functional impacts” as including “depressed mood” and “reduced tolerance for stress”. The assessor stated:[29]
The client indicated that this condition should not have much impact on his ability to work.
[29] Ibid.
The assessor considered that Mr Prestt had a baseline work capacity of 15 to 22 hours per week in a “light semi-skilled” work and that his work capacity was expected to increase with intervention within two years to 23 to 29 hours per week.[30]
[30] Ibid at T16/84.
JCA – 22 November 2016
On 22 November 2016, a registered psychologist and rehabilitation counsellor undertook a job capacity assessment (JCA) of Mr Prestt and submitted their JCA report to Centrelink on 15 December 2016.[31]
[31] Refer T-Documents T29.
The first medical condition listed on the report is “depression”. The assessors referred to a letter by Dr Kumar dated 20 September 2009 confirming a diagnosis of “major depression”. The treatment for this condition was described in the report as follows:
Past: Psychiatric assessment, inpatient treatment, medication, Psychological counselling, Partners in Recovery.
Current: medication, GP care
Future: referral for counselling, medication and GP care.
The client reported he developed depression after sustaining a leg injury in 2003. He said he has seen psychiatrist and psychologist over the years and takes medication on an ongoing basis. He indicated he returned to work after recovering from the injury and that symptoms have worsened again in 2013. He said he has been seeing a Psychologist this year and will continue this in the new year.
The assessors recorded that Mr Prestt reported symptoms of “fluctuating low mood” and “reduced stress tolerance”. The assessors did not consider this condition as “optimally treated or stabilised” at the time of the assessment because Dr Ahmad had stated in a medical certificate that his condition “is currently exacerbated’ and Mr Prestt’s indication that he planned on having further psychological counselling.
The next condition addressed by the assessors was Mr Prestt’s IHD. The assessors stated that Mr Prestt had reported that he had been having heart issues for the previous 12 months and would be having a review with his specialist and “may have surgery to repair an aneurysm in his aorta”.[32] Under the heading “current symptoms and functional limitations”, the assessors stated as follows:[33]
The client reported: chest pain and shortness of breath on exertion; he said he is able to walk independently, he gets short of breath when moving a small patch of lawn at home, he said he can do the grocery shopping and has been managing part time work of a clerical nature until recently.
[32] Refer T-Documents T29/119.
[33] Ibid.
The assessors considered that the condition of IHD was not “optimally treated or stabilised” at this stage.[34]
[34] Ibid at T29/120.
The assessors referred to the condition of “liver disorder i.e. cirrhosis” indicating that Mr Prestt had reported being diagnosed with fatty liver and that he had a lesion on his liver. He complained to the assessors of abdominal pain and lethargy.[35] Mr Prestt indicated he may require surgery and would be having a specialist review at the liver clinic. The assessors considered that this condition may not be “optimally treated or stabilised”.
[35] Ibid.
The assessors were satisfied that Mr Prestt’s below-knee amputation of the left leg was a permanent condition to which they considered he had a mild functional impact on activities using his lower limbs. The assessors stated as follows:[36]
The client report[s] he has difficulty using stairs due to balance and needs to hold the hand rail for support. He said he is able to walk independently, complete grocery shopping and drive a car. He said he has to be more careful when mobilising over uneven terrain and using stairs.
…
The client reports he is able [to] walk independently using his prosthesis. He said he does [not] use crutches but has a wheelchair [in case] his leg hurts too much to wear his prosthesis but tends not [to] use the wheelchair.
Medical report by Dr Tokman, GP dated 23/10/2014 indicates the client has difficulty walking for prolonged standing and walking long distances and has pain at times.
[36] Refer T-Documents T29/123.
The assessors considered that Mr Prestt required specialist disability employment interventions citing that he required support to “cope with work related stress and pressure” and to “maintain sustainable employment”.[37] They referred Mr Prestt to “DES – Employment Support Services”. They assessed Mr Prestt as having a baseline work capacity of between 8 to 14 hours per week in a light semi-skilled position (such as “clerical, administrative tasks”) and with intervention, his work capacity should increase within two years to 15 to 22 hours per week. The rationale for this assessment was that Mr Prestt was “currently experiencing increased symptoms including low mood, chest pain, shortness of breath and reduced endurance and that with further medical treatment (specialist reviews, possible surgery, psychological counselling), the condition may somewhat improve within the next 24 months”.[38]
[37] Ibid at T29/124.
[38] Ibid.
The following was recorded by the assessors as Mr Prestt’s “employment history/goals”:[39]
Mr Prestt reported that his previous employment includes factory work prior to the amputation, and working in an automotive repair business from 2011 to September 2014. He indicated that he has completed a business course, and was working 15 hours a week performing clerical duties until early this year. He said the funding ran out for his [paid] position and he may [continue] with volunteering at his work place once his medical conditions improve.
[39] Ibid at T29/125.
The assessors also stated that Mr Prestt reported that he had stable accommodation, a driver’s licence and a car. They also stated:[40]
He indicated that he also has a Diabetes condition that is well managed with diet.
[40] Ibid.
Assessment Services Recommendation – 4 October 2017
As mentioned above, Mr Prestt made his claim for DSP on 27 September 2017. On 4 October 2017, a registered nurse undertook an assessment of his eligibility for DSP and issued an Assessment Services Recommendation (ASR). In the ASR, the registered nurse described the conditions being assessed to include “left transtibial amputee, and also more recent diagnosis of Non-Hodgkin’s lymphoma”.[41] The report indicates that contact was not made with Mr Prestt’s treating health professionals as it was considered that it was not required. Nor was it considered that contact with the Health Professional Advisory Unit was required.
[41] Refer T-Documents T38/141.
The registered nurse’s recommendation was that Mr Prestt’s DSP claim be “rejected based on current and valid assessment”. The nurse made note of the five-point impairment rating that had been allocated under Table 3 for Mr Prestt’s lower limb impairment arising from the below-knee left leg amputation and considered that no information had been supplied that would support an adjustment by her, of this assessment. The nurse stated that Mr Prestt was due to see an oncology team and to start treatment for the Non-Hodgkin’s Lymphoma and that no further evidence was provided about this condition. The nurse did not consider this condition to be treated or stabilised. The nurse noted the report provided by Ms Tansey dated 10 July 2017 and that her recommendations were taken into account by the previous assessors. The nurse did not consider that it supported an adjustment by her, regarding this condition.
Accordingly, the nurse adopted the 2016 JCA assessment in relation to Mr Prestt’s previous DSP claim.
Participation in a Program of Support
On 13 August 2015, Mr Prestt attended a DES ESS Program of Support with DVJS Employment Services (DVJS). He was recorded as having breaks from this Program of Support from 1 December 2016 until 21 February 2017 due to a temporary medical incapacity exemption;[42] and from 16 December 2016 to 30 June 2017 due to a temporary reduced work capacity.
[42] Refer T-Documents T24/147.
A Centrelink information form completed by DVJS stated that this Program of Support was specifically designed to address Mr Prestt’s circumstances and they, “Attempted to explore work capacity and tried to address barriers. Work options severely limited due to multiple health issues, physical endurance and ongoing mental health concerns”.[43] It was also stated on this form that Mr Prestt was required to “job search” earlier on in the program and attend suitable interviews, however, more recently Mr Prestt’s deteriorating health had “rendered this impossible”.[44] DVJS stated that Mr Prestt met the minimum requirements for fortnightly appointments but was unable to comply with benchmark hours, “as capacity to work was very limited”.[45] DVJS stated that Mr Prestt completed numerous training certificates to keep his employment options open and that DVJS provided him with a high level of workplace support.
[43] Ibid.
[44] Ibid at T24/148.
[45] Ibid at T-Documents T24/148.
The outcome of the provision of these services to Mr Prestt was described by DVJS as follows:[46]
The customer completed 54 weeks of employment from 2/11/15 – 14/11/16 with regular post placement support and intense ongoing support from DVJS. This ultimately was not sufficient to keep the customer in employment.
[46] Refer T-Documents T41/148.
The Tribunal notes that a Centrelink record dated 10 May 2018 stated that Mr Prestt had confirmed with a representative of Centrelink that he had worked for an employer, Living and Learning, but he was only filling in for someone who was on leave.[47]
[47] Refer T-Documents T46/178.
Evidence of Mr Prestt participation in a number of Programs of Support is detailed in Centrelink’s Referral History report.[48] The report records that Mr Prestt was listed as participating in “activity” for the following relevant periods:
(a)Stream 1 (Limited) with NS40 Echo Pakenham from 10/12/2014 to 23/01/2015;
(b)Stream 1 (Limited) with NS40 Echo Pakenham from 23/01/2015 to 6/02/2015;
(c)Employment Assistance with DVJS from 13/08/2015 to 2/11/2015;
(d)Post Placement Support with DVJS from 2/11/2015 to 23/05/2016;
(e)Ongoing Support with DVJS from 23/05/2016 to 24/11/2016; and
(f)Employment Assistance with DVJS from 19/07/2017 to 1/07/2018.
[48] Refer T-Documents T53.
Closing submissions
The Secretary’s representative submitted at the close of the hearing on 2 May 2019 that the Secretary had lodged further written submissions on 11 April 2019, relied on the submission previously lodged on behalf of the Secretary and had nothing further to add. He said that in light of the evidence at the hearing on 2 May 2019, the Secretary still considered that Mr Prestt’s conditions were not fully treated and stabilised as at the Qualification Period and the medical evidence “spoke for itself”.
The Secretary’s representative was asked by the Tribunal whether there were any particular parts of the voluminous materials it had provided to the Tribunal on 11 April 2019, namely, the treatment guidelines referred to in paragraph [11] in these Reasons for Decision, which he considered to be of relevance to this application. The Secretary’s representative said that those documents were sent to the Tribunal to demonstrate that it was difficult to find that a mental health condition of depression was fully diagnosed, treated and stabilised where only one medication had been used by Mr Prestt over such a long period of time with no psychiatric involvement. He said that Dr Siotia had acknowledged the difficulty in knowing how Mr Prestt would react to the change in medication. The Secretary’s representative contended that those documents demonstrated that there were a raft of treatments available regarding mental health and “best practice”.
The Tribunal asked the Secretary’s representative if the documents containing the treatment guidelines referred to any treatments that he considered that Mr Prestt should have undertaken. He referred the Tribunal to page 27 of the RANZC outlined various treatments that could have been used.
The Tribunal asked the Secretary’s representative if he wished to respond to Dr Ahmad’s evidence that Mr Prestt’s mental health condition had been settled until December 2017. He said that even if the Tribunal were to find that Mr Prestt’s condition was fully treated and stabilised, he contended there was no evidence in relation to assigning an impairment rating under the Impairment Tables. The Secretary’s representative said there was no record of Mr Prestt having attended counselling or a psychologist, other than with Mr Gallagher in 2016.
Mr Prestt made oral submissions at the end of the hearing as follows. He said that between 2009 and 2018 he did not see a psychiatrist. He said he was on tablets; was going through a difficult time personally; had become a recluse; and did not seek any help. Mr Prestt said he struggled with things to date, and still had ongoing issues. He said he took his medication. Mr Prestt said there were some things he would never recover from. He said he was getting diagnosed with different conditions and recently had been diagnosed with spondylosis of the neck after an MRI was performed. Mr Prestt said it was sometimes difficult to get around.
CONSIDERATION
In considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1]:[49]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[49] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether, as at the Qualification Period, Mr Prestt had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination.
The Secretary accepts that this requirement is met.[50] The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because as at the Qualification Period, Mr Prestt’s medical conditions resulted in a loss of physical and psychiatric functional capacity affecting his ability to work.
[50] Refer paragraph [4.3] of the Secretary’s SFIC.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Prestt must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, treated and stabilised as at the time of the Qualification Period and more likely than not to persist for more than two years.
Based on Mr Prestt’s own evidence, he accepted that a number of his medical conditions were, as at the Qualification Period, not fully diagnosed, treated and stabilised (some of them having been diagnosed more recently or were still under investigation) or did not impact him functionally because the condition was being adequately managed by medication or other treatment, including:
(a)liver and spleen conditions – see paragraph [34];
(b)hypertension – see paragraph [38];
(c)GORD – see paragraph [37];
(d)hypothyroidism (Post Thyroidectomy) – see paragraph [36];
(e)type II diabetes – see paragraph [33]; and
(f)COPD – see paragraph [35], taken in conjunction with the evidence referred to in paragraph [82] showing that pulmonary function testing was still taking place in February 2018 (i.e. after the Qualification Period).
On this basis, the Tribunal concludes that none of those conditions resulted in an impairment rating under the Impairment Tables as at the Qualification Period for the purposes of Mr Prestt’s present DSP claim.
The Tribunal will now consider each of the remaining medical conditions in turn to assess whether they were “permanent” as defined in the Determination and likely to persist for longer than two years; and if so, what impairment rating should be assigned to those conditions under the Impairment Tables.
Left leg (below-knee) amputation – Table 3
Starting with the below-knee left leg amputation, it was not in dispute that this condition was “permanent” as at the Qualification Period, as supported by the medical evidence confirming that this condition had stabilised and no further treatment was recommended, other than a regular review and updating of his left leg prosthesis. This condition resulted in a functional impact on activities using Mr Prestt’s lower limbs. As at the Qualification Period, the Tribunal finds that Mr Prestt was unable to kneel down, walk as far as he did prior to the injury and subsequent amputation, and he had difficulty using stairs.
The Introduction to Table 3 specifies that there must be corroborating evidence of the person’s impairment and that self-report of symptoms alone is insufficient. Such corroborating evidence may include medical reports or results of diagnostic tests or physical tests or assessments. The Tribunal considers that another form of corroborating evidence may include reports made by the person claiming DSP about the functional impact of his or her conditions, to a job capacity assessor as part of a JCA or ESA process.
Previously assessors have considered that a five-point rating should be assigned to Mr Prestt under Table 3. The descriptors for this rating are set out below:
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
a. The person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
b. The person has some difficulty walking around a shopping mall or supermarket without a rest; or
c. The person has some difficulty climbing stairs; and
(2) At least one of the following applies:
a. The person is unable to stand for more than 10 minutes;
b. The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
The Tribunal has found that Mr Prestt is able to walk for up to 30 minutes. Based on the report made by Mr Prestt to the assessors who conducted a JCA on 22 November 2019 and Mr Prestt’s evidence, the Tribunal also finds that Mr Prestt was able to use stairs although he experienced difficulty when doing so – see paragraph [104]. The Tribunal also finds that Mr Prestt was able to ambulate over uneven terrain but he had to be careful when doing so. On the basis of those findings, the Tribunal concludes that Mr Prestt meets at least the descriptors referred to in (1)(c) and (2)(b) applied to him as at the Qualification Period. For this reason, the Tribunal is satisfied that Mr Prestt had at least a mild functional impairment to his lower limbs under Table 3.
The next step for the Tribunal is to consider whether Mr Prestt met the descriptors set out in Table 3 that apply to a person who has a moderate functional impact on activities suing his lower limbs. Those descriptors are set out below:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
a. The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b. The person is unable to use stairs or steps without assistance; or
c. The person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
a. Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
b. Move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Based on Mr Prestt’s own evidence, the descriptors referred to in (2) and (3) apply to him. He owns and drives his own unmodified car. He goes to the shops to buy extra groceries when required by him. He is able to move around independently using his prosthesis, even though he might require more time to use stairs and even though there may be some areas of the workplace or a training facility he is unable to access (i.e. he is unable to access items placed on low shelves due to his inability to kneel). The issue is whether at least one of the descriptors in (1) applies to Mr Prestt.
For the above reasons, the Tribunal finds that Prestt had a mild difficulty with social and recreational activities and travel.
Descriptor (c) - Interpersonal relationships
The example given in Table 5 for a person with no difficulty with this activity is that they have no difficulty forming and sustaining relationships. The example given in Table 5 for a person with mild difficulty is that they have interpersonal relationships that are strained with occasional tension or arguments. The example given for a person with moderate difficult is that they have difficulty making and keeping friends and sustaining relationships. The examples given of a person with severe difficulty are that they have very limited social contacts and involvement unless these are organised for them or that they often have difficulty interacting with other people and may need assistance or support from a companion to engaged in social interactions. The example given for a person with extreme difficulty is that they have extreme difficulty interacting with other people in and are socially isolated.
The evidence was clear that there was a significant issue with respect to Mr Prestt’s relationships with some of his immediate family members, most acutely, his children from whom he was estranged during the Qualification Period. It was also evident that the relationship with his ex-partner was problematic. On the other hand, Mr Prestt had positive relationships with both of his parents who he described as supportive of his situation. Mr Prestt also gave evidence that he got along well with the people who he interacted with at the Men’s Shed which is evident from the fact that he attended the Men’s Shed on a regular basis (a few times a week). Mr Prestt was described by the health practitioners that had examined and treated him (and others) as cooperative and friendly.
By his own evidence, Mr Prestt said that he got along well with the people in the workplace when he completed the year-long work trial in 2016. Mr Prestt claimed that if he was required to work in a normal (i.e. unassisted) workplace that it was likely that he would retaliate against others if he was placed under normal workplace pressures. However, there was insufficient corroborating evidence that this had ever occurred in the past. The JCA assessors made a note in their report in 2016 that Mr Prestt had “reduced stress tolerance” (see paragraph [100]). However, neither Mr Tansey nor Mr Kumar, in their reports, made any observations that would suggest that Mr Prestt faced a specific challenge with respect to his ability to be able to relate well to others in the workplace.
Based on the examples given in Table 5 as referred in paragraph [166] above, the Tribunal considers that the evidence revealed that Mr Prestt had certain interpersonal relationships that were strained (being those with his ex-partner and children) and others that were positive, being those with his parents, at the Men’s Shed and at church. The JCA assessors recorded in 2016, without providing specifics, that Mr Prestt had a “reduced stress tolerance” (see paragraph [100]).
The Tribunal considered that based on the evidence, on balance, that Mr Prestt had a mild difficulty with interpersonal relationships as at the Qualification Period.
Descriptor (d) - Concentration and task completion
The examples given in Table 5 for a person with no difficulty with these activites is that they have no difficulties concentrating on most tasks or they are able to complete a training or educational course or qualification within the normal timeframe. The examples given in Table 5 for a person with mild difficulty is that they have difficulty focusing on complex tasks for more than one hour or they have some difficulties completing education or training. The examples given for a person with moderate difficulty is that they find it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book) or find it difficult to follow complex instructions (such as an operating manual, recipe or assembly instructions). The examples given for a person with severe difficulty are that they have difficulty concentrating on any task or conversation for more than 10 minutes or they have slowed movements or reaction time due to psychiatric illness or treatment effects. The examples given for a person with extreme difficulty are that they have extreme difficulty in concentrating on any productive task for more than a few minutes or in completing tasks or following instructions.
Ms Tansey recorded that Mr Prestt reported certain concentration and memory issues at the time she undertook a cognitive assessment of him in July 2017 (shortly before the beginning of the Qualification Period). Ms Tansey in her assessment report (see paragraph [73]) considered that those lapses may have been the result of Mr Prestt’s age and to the extent that they were affected by his “depression and anxiety”, she recommended that he have counselling to develop strategies to assist him with his concentration and memory. Ms Tansey noted that Mr Prestt was nevertheless able to “organise paper work and present this at important meetings”.
In Ms Tansey’s subsequent report in June 2018, she stated that Mr Prestt had difficulty concentrating on any task or conversation for more than 10 minutes and that “this occurs regularly in the counselling sessions”. About four of the counselling sessions between Ms Tansey and Mr Prestt took place during the Qualification Period. However, this was not a difficulty that Mr Prestt had expressed to any other health practitioner or assessor prior to or during the Qualification Period. When Dr Ahmad was asked at the hearing about Mr Prestt’s concentration, Dr Ahmad said he would say he had issues with poor concentration and difficulty with doing normal activities generally, but that he did not observe any particular concentration issues at the consultation with Mr Prestt – see paragraph [47]. Mr Prestt’s own evidence at the hearing was that he was able to focus for about 20 minutes – see paragraph [21(i)]. Ms Tansey’s subsequent observations in her June 2018 report also seemed at odds with the fact the Mr Prestt had completed a Certificate II business course and other certificates to keep his employment options open; and that he had completed a part-time year-long work trial in 2016.
By Mr Prestt’s own evidence, during the Qualification Period he was able concentrate sufficiently to watch movies and videos, even if he would fall asleep watching them. His concentration allowed him to be able to live independently safely and to administer his own finances, even if it may have been a relatively simple task to do so according to the description provided by Mr Prestt.
Based on this evidence, the Tribunal finds that Mr Prestt had mild difficulties with concentration and task completion.
Descriptor (e) – Behaviour, planning and decision-making
The example given in Table 5 for a person with no difficulty with these activities is that there is no evidence of significant difficulties in behaviour, planning or decision-making. The examples given in Table 5 for a person with mild difficulty are that they have unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than appropriate to the situation or has slight difficulties in planning or organising complex activities. The examples given for a person with moderate difficult are that they have difficulty coping with situations involving stress, pressure or performance demands; or have occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement); or their activity levels are noticeably increased or reduced. The example given for a person with severe difficulty is that their behaviour, thoughts and conversation are significantly and frequently disturbed. The examples given for a person with extreme difficulty are that they have severely disturbed behaviour which may include self-harm, suicide attempts, unprovoked aggression towards others or manic excitement; or their judgement, planning and organisation functions are severely disturbed.
At Dr Kumar’s initial consultation with Mr Prestt in January 2008, when Mr Prestt was at a low point having been admitted to Pinelodge Clinic, Dr Kumar said that Mr Prestt was “not thought disordered” nor “deluded” and was observed by Dr Kumar to be “cognitively intact with sound insight and judgment”.
Ms Tansey assessed Mr Prestt to be cognitively normal when she undertook a neuropsychology screening test of him in July 2015. In Ms Tansey’s subsequent June 2018 report (post-dating the Qualification Period), she stated as that Mr Prestt’s “depression, withdrawal, and suicidal ideation” had impacted on his behaviour, planning and decision making, although specific examples of those impacts were not provided by her.
At the hearing on 2 May 2019, Dr Ahmad said he had no memory of, nor had he recorded anything about, any impact of the conditions on Mr Prestt’s planning or behaviour – see paragraph [47]. Dr Siotia was only able to make observations as to Mr Prestt’s mental health conditions as he had presented to Dr Siotia during consultations that post-dated the Qualification Period.
The Tribunal notes that the JCA assessors had recorded in 2016 that Mr Prestt had “low mood and reduced stress tolerances”. No specifics were provided to demonstrate how this was so. There was no evidence that Mr Prestt had a history of frequent outbursts or that he engaged in behaviours that presented as a risk to himself or others. There was no evidence that that he had ever attempted suicide, acknowledging that he had suicidal ideations. Fortunately, Mr Prestt’s decision making was sufficiently sound so that when he experienced those thoughts he raised the alarm at the appropriate time and sought help before acting on those urges.
The Tribunal notes that Mr Prestt told the Tribunal at the hearing that he was assisted by an EACH case worker to prepare his claim for DSP, indicating that he was challenged by the task of completing (a relatively straightforward) form. However, this evidence was uncorroborated (i.e. not confirmed by any other person) and further, it seemed to be at odds with the report that Mr Prestt had successfully completed a Certificate II business course as part of his preparations to search for work.
Taking all those matters into account, the Tribunal finds that as at the Qualification Period, Mr Prestt had a moderate difficultly with behaviour, planning and decision-making activities because there was some evidence that he had difficulty coping with situations involving stress, pressure or performance demands (mainly Mr Prestt’s perception that he would struggle even though this has not been tested for a long period of time) and also because the Tribunal accepts on the balance of probabilities that Mr Prestt had occasional behavioural or mood difficulties (such as occasional agitation, depression and withdrawal) or that his activity levels were noticeably reduced because of the fatigue he experienced as a symptom of his depression from time to time.
Descriptor (f) – work/training capacity
The example given in Table 5 for a person with no difficulty with these activities is that they are able to cope with the normal demands of a job which is consistent with their education and training. The example given in Table 5 for a person with mild difficulty is that they have occasional interpersonal conflicts at work, education or training that requires intervention by a supervisor, manager or teacher, or changes in placements or groupings. The example given for a person with moderate difficulty is that they often have interpersonal conflicts at work, education or training requiring intervention. The examples given for a person with severe difficulty are that they are unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness. The example given for a person with extreme difficulty is that they are unable to attend work, education or training sessions other than for short periods of time.
The Tribunal notes that Mr Prestt was able to attend and complete a work trial for about 12 months during 2016 working on a part-time basis. By his own evidence, Mr Prestt said he worked well with the others during the workplace trial, noting that it was an assisted workplace (meaning the Tribunal is careful not to place too much weight on this). The reason this work placement did not continue was because the funding for it was depleted and not due to any reported difficulty with Mr Prestt meeting the requirements of the placement or his conduct in this role. Mr Prestt gave evidence that he was able to get up and go to work each day because he knew he had to, although when he arrived home, his evidence was that he would sleep for four hours in the afternoon.
The Tribunal notes that Mr Prestt was able to successfully complete a Certificate II business course indicating a certain level of capacity to undertake training.
The Tribunal considers that much of the reduced capacity that Mr Prestt may have for work, relates to the combined effects of his co-morbidities. The Tribunal attempted to distil which of these difficulties were experienced by him due to his MDD as distinct from arising from any of his other medical conditions. This is not an easy task. However, on balance the Tribunal considers that the impact of Mr Prestt’s MDD on his capacity for work and training activities was mild.
Returning to Table 5, the Tribunal assigns a 5-point rating to the functional impairment to Mr Prestt’s mental health function arising from his condition of MDD because, as at the Qualification Period, he met the requirement of having mild difficulties with most (i.e. more than 50%), of the activities referred to in descriptors (1)(a) to (f) inclusive in Table 5. The Tribunal is not satisfied that 10-point rating applies, because Mr Prestt did not have moderate difficulties with most of of those activities.
Heart conditions
The Tribunal notes the early reports (as set out in paragraph [101]) by Mr Prestt in November 2016 to JCA assessors about him having experienced heart issues for the previous 12 months and that he was due to be reviewed by a specialist with the possibility of having surgery. In terms of functional impacts, the JCA assessors recorded that Mr Prestt reported to them that he was able to walk independently and do grocery shopping; but he had chest pain and shortness of breath on exertion; and he was short of breath when mowing a small patch of lawn at his home.
The Tribunal accepts the evidence of Dr Ahmad that when he saw Mr Prestt on 5 October 2017 (falling within the Qualification Period) that Mr Prestt had complained to him of shortness of breath over the previous few months. This prompted Dr Ahmad to arrange Mr Prestt to undergo some sleep studies and for a cardiologist to undertake a review. Dr Ahmad’s evidence was that the cardiologist thought that the shortness of breath symptoms may be a respiratory issue and he was referred to a specialist for further investigations. Mr Prestt has now been diagnosed with the respiratory condition of COPD; however, this condition was diagnosed after the end of the Qualification Period.
As part of the review by the cardiologist, a baseline echo study was performed on Mr Prestt on 11 November 2017 (falling within the Qualification period) revealing that he had “normal resting left ventricular systolic function” (see paragraph [79]). An echocardiogram was subsequently performed after the end of the Qualification Period (in March 2018) confirming that Mr Prestt had “normal left ventricular size, wall thickness and systolic function” but revealing that he had “mild aortic regurgitation” and “mildly dilated aortic root and ascending aorta” – see paragraph [83].
The Tribunal notes that Mr Prestt reported to the ARO in April 2018 that his heart was being monitored by cardiologists at Monash, with the last review as recently in 2018; surgery was not recommended; he continued to take Aspirin and medication for his cholesterol; and he got chest pains occasionally.
On the basis of this evidence, the Tribunal finds that Mr Prestt’s heart condition was not fully diagnosed as at the time of the Qualification Period. He was subsequently (after the end of the Qualification Period) diagnosed with the mildly dilated aorta (which did not warrant any surgical intervention). It did not appear clear to the Tribunal from the evidence that Mr Prestt’s heart condition was at the root of the symptoms causing him to have shortness of breath. Another possible cause of this may have been the COPD which Mr Prestt was diagnosed with after the end of the Qualification Period.
Accordingly the Tribunal concludes that Mr Prestt’s heart conditions of “mild aortic regurgitation” and “mildly dilated aortic root and ascending aorta” are not “permanent” as defined in the Determination, as those conditions had not been fully diagnosed as at the Qualification Period.
Severe OSA
The Tribunal is satisfied that Mr Prestt was fully diagnosed as suffering from “severe OSA” as at the Qualification Period based on the results of the sleep study performed by Dr Sharma on 1 November 2017 as detailed in paragraph [78]. On this date, Dr Sharma made a series of recommendations to Mr Prestt about how to treat this condition.
Mr Prestt said he had tried the CPAP machine for a week but had only hired it for one week from the Chemist. He said he was hoping to acquire a CPAP machine through the NDIA. This will allow Mr Prestt to use the machine on a continual basis to seek to address his OSA condition.
It was also recommended by Dr Sharma that Mr Prestt reduce his weight. There was insufficient evidence before the Tribunal to satisfy it that reasonable strategies had been employed by Mr Prestt on a sustained basis before the end of the Qualification Period, to seek to reduce his weight as recommended by Dr Sharma.
Based on this evidence, the Tribunal was not satisfied that as at the end of the Qualification Period, that enough time had lapsed since the diagnosis of the condition of “severe OSA” for Mr Prestt to undertake the reasonable treatment that had been recommended by Dr Sharma such as using the CPAP machine once he acquired it and by implementing appropriate strategies such as undertaking an exercise program and commencing a low-calorie diet to seek to reduce his weight. For this reason, the Tribunal finds that this condition of OSA was not fully treated and was not fully stabilised at the time of the Qualification Period. The Tribunal concludes that the condition of OSA was not “permanent” as defined in the Determination.
Lymphoma
The Tribunal notes that Mr Prestt was diagnosed in December 2016 with “non-Hodgkin’s lymphoma” as recorded in a medical report by Dr Adams in January 2017, and referred to the oncology team at Monash Medical “to begin oncology treatment”. As mentioned, there is also evidence of a bone marrow biopsy having been performed on Mr Prestt at Monash Health on 15 February 2017.[53]
[53] Refer T-Documents T31/128
In Dr Adam’s subsequent medical report dated 5 June 2017, there is no further mention of the lymphoma condition. Further, there was no other evidence presented to the Tribunal to inform the Tribunal of the continued status of this condition, i.e. whether this condition was in remission as at the Qualification Period or otherwise.
Accordingly, there was insufficient evidence for the Tribunal to make any finding that Mr Prestt’s condition of “non-Hodgkin’s lymphoma” was fully diagnosed, fully treated or fully stabilised as at the Qualification Period. The Tribunal concludes that this condition was not “permanent” as defined in the Determination and cannot be assigned a rating under the Impairment Tables.
Spinal conditions
The Tribunal notes that Mr Prestt had a CT scan in February 2017 (before the Qualification Period), which revealed some mild degenerative changes in his lumbar spine. In closing submissions, Mr Prestt also told the Tribunal he had more recently been diagnosed with spondylosis of the neck following an MRI that was performed on him.
There was insufficient evidence before the Tribunal upon which it could make findings that Mr Prestt was suffering from any “permanent” spinal conditions which had impacted on his spinal function as at the Qualification Period.
CONCLUSION
In conclusion, the Tribunal has found that, as at the time of the Qualification Period, Mr Prestt had the following conditions that were “permanent” as defined in the Determination:
(a)“left leg below-knee amputation” to which the Tribunal has assigned 5 points under Table 3 for impairment to Mr Prestt’s lower limbs; and
(b)“major depressive disorder” to which the Tribunal has assigned 5 points under Table 5 for impairment to Mr Prestt’s mental health function.
The Tribunal has found that Mr Prestt’s remaining medical conditions were either not “permanent” as at the Qualification or they did not result in functional impairment to Mr Prestt at a level that would attract a positive impairment rating under the Impairment Tables.
This means that as at the Qualification Period, Mr Prestt did not meet the eligibility requirement under s 94(1)(b) of the Act because his “permanent” conditions did not attract a total impairment rating of 20 points or more under one or more of the Impairment Tables (i.e. Mr Prestt’s total impairment rating was 10 points).
As the Tribunal has concluded that Mr Prestt did not meet the eligibility requirement under s 94(1)(b), the Tribunal is not required to consider whether he had met the other mandatory eligibility requirements under the Act as at the Qualification Period.
Accordingly, the Tribunal affirms the decision of the AAT1. This means that Mr Prestt is not eligible to receive the DSP as from the date of his claim on 27 September 2017. As advised at the hearing, Mr Prestt is entitled to make a further DSP claim if he would like to be reassessed for his eligibility to receive the DSP (if he has not done so already).
I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
...[sgd]................................................................
Associate
Dated: 31 October 2019
Date of hearing:
Date final evidence/submissions received:
4 April 2019 and 2 May 2019
13 May 2019
Representative for the Applicant: Self-represented Representative for the Respondent: Mr James Henderson, Senior Lawyer
Litigation & Information Release Branch
Legal Services Division
Department of Human Services
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