Prsa and Secretary, Department of Social Services (Social services second review)

[2019] AATA 1978

Prsa and Secretary, Department of Social Services (Social services second review) [2019] AATA 1978 (18 July 2019)

Division:GENERAL DIVISION

File Numbers:         2018/4150

Re:Marinko Prsa  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:18 July 2019

Place:Sydney

The Tribunal is satisfied that during the qualification period Mr Prsa did not satisfy section 94(1)(c) of the Social Security Act 1991 (Cth) and therefore did not qualify for disability support pension.

The decision under review is affirmed.

............................[sgd]............................................

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during claim period – whether condition fully diagnosed, treated, stabilised and likely to persist for more than two years – whether impairment attracts 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – whether applicant had a ‘severe’ impairment – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Senior Member

18 July 2019

1. On 6 December 2016 Mr Prsa lodged a claim for Disability Support Pension (DSP).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy section 94(1)(c) of the Act.

3. In a decision dated 19 June 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) decided that although Mr Prsa had a combined rating of 20 points under the Impairment Tables 2, 3 and 4, he had not satisfied the provisions of section 94(2) of the Act.

4. Mr Prsa, who was self-represented, attended the hearing in person and now seeks review of the AAT1 decision. Also in attendance was his treating psychologist.

   ISSUES

5. In order to qualify for DSP Mr Prsa must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 6 December 2016 and 7 March 2017 (the qualification period).

6. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (s 94(1)(a));

   ·the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).

7. The Respondent concedes, and the Tribunal accepts, that Mr Prsa suffers several medical conditions that cause impairment, and therefore he satisfied section 94(1)(a) of the Act at the time of his claim for DSP.

8. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

9. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

   ·fully treated (paragraph 6(4)(b)); and

   ·fully stabilised (paragraph 6(4)(c)); and

   ·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

10. The introduction to each relevant Table of the Impairment Determination notes that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

11. Also, the introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

12. The Respondent contends and the Tribunal accepts that Mr Prsa suffers several medical conditions that are “permanent’ for the purposes of the Impairment Determination and which have a functional impact on upper limb, lower limb and spinal function.

13. The Respondent contends that a combined impairment rating of 25 points can be assigned with 5 points under Table 2 (upper limb), 10 points under Table 3 (lower limb) and 10 points under Table 4 (spine).

14. After having reviewed the available evidence, which can best be described as incomplete and lacking detail, I am satisfied that the impairment ratings assigned by the Respondent are reasonable.

15. This means that during the qualification period Mr Prsa satisfied section s 94(1)(b) of the Act.

16. In my view there is no convincing evidence before the Tribunal to support a conclusion that during the qualification period Mr Prsa suffered severe functional impact on activities involving the relevant functions with respect to Impairment Tables 2, 3 and 4.

17. The Respondent contends that, during the qualification period, Mr Prsa did not have a “continuing inability to work” and therefore did not satisfy section 94(1)(c) of the Act because he did not have a “severe impairment” as defined in section 94(3B) of the Act and had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act.

18. Section 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the “POS Determination”) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

19. Centrelink POS records show that prior to his application for DSP, Mr Prsa was   participating in a POS but had not completed the requisite 18 months.

20. Mr Prsa contends that, during the qualification period, he suffered a mental health condition which had a “severe” functional impact on activities involving his mental health function and therefore was not required to complete a POS. 

21. Section 94(3B) of the Act states that “a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.

22. The Respondent accepts that prior to the date of his application for DSP Mr Prsa was suffering a mental health condition that had been diagnosed by a psychiatrist but contends that, during the qualification period, the condition was not fully treated and fully stabilised so that a rating under Impairment Table 5 cannot be applied.

23. Alternatively, if the Tribunal finds that Mr Prsa’s mental health condition was permanent for the purposes of the Impairment Determination, the Respondent submits that on the available evidence the rating under Impairment Table 5 cannot be greater than 10 points.

24. Therefore, the definitive issue in this matter is whether, during the qualification period, Mr Prsa suffered a “severe impairment” with respect to his mental health condition, that is, whether a rating of 20 points or more under Impairment Table 5 could be assigned.

25. At this point I note that, at the hearing, the Tribunal was informed that following a subsequent application Mr Prsa was granted DSP on 25 September 2018. Mr Prsa had completed the POS requirements and was assessed as having a combined rating of 35 points under the Impairment Tables with 5 points under Table 2 (upper limb), 10 points under Table 3 (lower limb), 10 points under Table 4 (spine) and 10 points under Table 5 (mental health).

    MENTAL HEALTH FUNCTION

26. In a letter to a GIO Claims Advisor dated 20 July 2015 Dr K Mayne, consultant psychiatrist, requested funding for Mr Prsa to “attend with Dr John Kearney, clinical psychologist” for assistance in order to deal with “the post-traumatic stress disorder resulting from the life threatening incident at work”.

27. I note that no other documentary evidence from Dr Mayne has been provided to the Tribunal.

28. At the hearing Mr Prsa told the Tribunal that he had seen Dr Mayne on a number of occasions before and after July 2015 but was unable to recall specific details. Mr Prsa indicated that Dr Payne had prescribed his current medication which has continued unchanged to the present time.

29. At the hearing Mr Prsa told the Tribunal that the insurer did not approve the funding request and conceded that he did not have any formal psychological treatment until May 2017, about two months after the end of the qualification period. Ongoing treatment had been provided by his general practitioner (GP).

30. In a letter to Centrelink dated 26 October 2017 Ms D Muller, registered psychologist, stated that Mr Prsa was referred by his GP for “psychological treatment of his depression and anxiety”.

31. Ms Muller stated that she first saw Mr Prsa on 17 May 2017 and most recently on 18 October 2017 and that “he complains of significant symptoms of depression, anxiety and pain, despite compliance with Cymbalta 60 mg”.

32. Ms Muller provided no information with respect to a specific diagnosis, type or frequency of treatment and gave no assessment of functional impact.

33. In a Centrelink Medical Certificate dated 12 June 2015 Dr Youssef, GP, listed “depression” as a medical condition which impacts on Mr Prsa’s capacity for work or study. Symptoms are recorded as “loss of interest social isolation insomnia loss of appetite” with no other details.

34. In subsequent Medical Certificates dated 11 April 2016, 28 August 2016, 18 November 2016, 19 February 2017 and 12 May 2017 Dr Youssef listed “depression” as a medical condition which impacts on Mr Prsa’s capacity for work or study. In each certificate symptoms are recorded as “loss of interest irritability loss of concentration” with no other details. 

35. Ms L Manoukian, registered psychologist, provided two written reports dated 8 August 2018 and 14 December 2018.

36. Ms Manoukian attended the hearing to support Mr Prsa and agreed to answer questions under oath.

37. In her report of 8 August 2018 Ms Manoukian noted that in February 2018 Mr Prsa had been referred by his GP for “assessment and management of anxiety and depression” and that he had attended a total of 15 treatment sessions.

38. Ms Manoukian stated that Mr Prsa met the criteria for “Major Depressive Disorder” and concluded that his condition had been fully treated and fully stabilised and that he qualified for 20 points under Impairment Table 5.

39. In her second report dated 14 December 2018 Ms Manoukian attempted to address the issue of Mr Prsa mental health condition during the qualification period. She stated that she had reviewed the medical records of Dr Youssef and Dr Muller and had “digital correspondence” with Dr Mayne.

40. At the hearing Ms Manoukian explained that she had sent a copy of her report to Dr Mayne who had replied by email that there had been no change in Mr Prsa’s condition. She concluded that, as Mr Prsa’s treatment appeared to have been unsuccessful, the severity of the impairment suffered by Mr Prsa during the claim period must have been the same his impairment as assessed by her in 2018.

41. Ms Manoukian was unable to provide any of the documents she had had considered in forming her conclusion and conceded that she had relied significantly on Mr Prsa’s self-report of symptoms.

    CONSIDERATION

42. Mr Prsa contends that during the qualification period his mental health condition was fully diagnosed, fully treated and fully stabilised. He also contends that, at that time, the condition had a severe impact on his activities involving mental health function.

43. The difficulty for Mr Prsa is that the medical evidence before the Tribunal, which is best described as incomplete, does not, in my view, provide sufficient support for his contentions.

44. The acceptance by the Respondent that Mr Prsa’s mental health condition was fully diagnosed on the basis of the letter provided Dr Mayne on 20 July 2015 I find problematic.

45. Dr Mayne’s letter provides no information to support a diagnosis of “post-traumatic stress disorder” and in my view is of limited value.

46. The only value of this document, for present purposes, lies in the fact that Dr Mayne has clearly indicated that Mr Prsa may benefit from further psychological treatment with a clinical psychologist.     

47. The evidence is that Mr Prsa did not, in fact, have any psychological treatment until May 2017, after the end of the qualification period. The letter provided by Ms Muller, although short in detail, does suggest that she did provide psychological treatment for Mr Prsa between May and October 2017.

48. In my view, this limited evidence points to an obvious conclusion that during the qualification period Mr Prsa’s mental health condition was not fully treated and fully stabilised.

49. Furthermore, as Ms Manoukian saw Mr Prsa on 15 occasions before providing her first report, one can only presume that at the time of first consultation she must have thought that psychological treatment may have been useful in managing Mr Prsa’s condition.

50. Therefore, I am satisfied that during the qualification period Mr Prsa’s mental health condition was not permanent for the purposes of the Impairment Determination, which means that that a rating under Impairment Table 5 cannot be applied.

51. It follows that, during the qualification period, Mr Prsa did not have a severe impairment under a single Impairment Table, and as he had not completed the required 18 months of participation in a POS, he did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

    DECISION

52. For reasons set out above the Tribunal is satisfied that during the qualification period Mr Prsa did not satisfy section 94(1)(c) of the Act and therefore did not qualify for DSP.

53. The decision under review is affirmed.

I certify that the preceding 53 (fifty - three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

........................................................................

Associate

Dated: 18 July 2019

Date of hearing:	1 July 2019
Applicant:	In person
Advocate for the Respondent:	Simon Agnello
Solicitors for the Respondent:	Department of Human Services