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

[2018] AATA 2580

Ritskos and Secretary, Department of Social Services (Social services second review) [2018] AATA 2580 (13 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3662

Re:Tamie Ritskos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:13 July 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member

Catchwords

SOCIAL SECURITY – eligibility for disability support pension – whether conditions fully treated and stabilised during qualification period – whether rating can be assigned under Impairment Tables – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Harris v Department of Employment and Workplace Relations (2007) 158 FCR 252

Secondary Materials

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

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

13 July 2018

INTRODUCTION

1. This is an application for review by Tamie Ritskos (the Applicant) of a decision made on 17 May 2017 by the Social Services & Child Support Division of the Administrative Appeals Tribunal which affirmed a decision of the Department of Human Services (the Department) made on 23 February 2017. The decision under review is that the Applicant did not qualify for the payment of the disability support pension (DSP) in respect of a claim made by her on 15 September 2016.

   THE LEGISLATION

2. Eligibility for the DSP is determined by application of section 94 of the Social Security Act 1991 (Cth) (the Act). Section 94(1) of the Act provides:

   (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;…

   THE QUALIFICATION PERIOD

3. The provisions of section 94 of the Act must be read in conjunction with section 13 and Schedule 2 section 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). These provisions establish a 13-week qualifying period for the DSP from the date that an application is made to the Department.[1] Therefore, in this case the qualification period within which the Applicant’s conditions must be assessed is from 15 September 2016 to 15 December 2016 (the qualification period).

   [1] The Applicant's claim to Centrelink for the DSP was made on 15 September 2016 and is document T14 of the T documents.

   ISSUES FOR DETERMINATION

4. The issues for determination are whether, during the qualification period:

   -The Applicant had a physical, intellectual or psychiatric impairment; and

   -Such impairments arise from fully diagnosed, treated and stabilised conditions which can be assessed for at least 20 points under the applicable Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   -The Applicant had a continuing inability to work.

5. It should be observed that in applying the Impairment Tables it is necessary that the condition causing that impairment has been fully diagnosed, fully treated and fully stabilised (see section 6 of the Impairment Tables).

   THE EVIDENCE BEFORE THE TRIBUNAL

6. There was documentary evidence before the Tribunal in the form of the T documents and Supplementary T documents (ST documents) which were tendered in evidence.

7. Additionally, the Applicant gave evidence from the witness box and was cross-examined by Mr Munro for the Secretary of the Department of Social Services (the Respondent).

   THE CONTENTIONS OF THE PARTIES

8. It should be recorded that the Applicant was self-represented. She stated that she felt she had done everything possible to qualify for the DSP. Further, she stated that she had obtained and provided to Centrelink everything that had been asked of her. She also contended that she had been “left in the dark” or “left in a ditch”. It seemed that she did not fully appreciate the elements required to successfully make a claim for the DSP.[2] In fairness to the Respondent it was properly explained to her in the course of the proceeding by Mr Munro.

   [2] This misapprehension on the part of the Applicant is not uncommon in this setting. Frequently, applicants do not appreciate the fact that an application for a DSP is subject to a qualification period and that in the event they do not qualify within the period it is necessary to make a fresh application in the event that the conditions subsequently meet the criteria that need to be satisfied under section 94(1).

9. The Respondent contended that the Applicant during the qualification period:

   -Did not have an impairment rating of 20 points or more ascribed to the conditions under the Impairment Tables;

   -Did not have a severe impairment within the meaning of the Act;

   -Had not actively participated in a program of support; and

   -Did not have a continuing inability to work.

   CONSIDERATION

10. It is necessary to examine each of the conditions of which there is evidence before the Tribunal by applying the relevant criteria as directed by section 94(1) of the Act.

    MENTAL HEALTH CONDITIONS

11. These conditions have been given several different descriptions. Dr Kim Chan,[3] the Applicant’s general practitioner, wrote a letter in support of the Applicant’s application for the DSP during the qualification period, describing the mental health conditions as being “PTSD, anxiety and depression”. In a medical report of 10 February 2017[4] they are described as “Depression/childhood abuse”.

    [3] Document T17 of the T documents.

    [4] Document T18 of the T documents.

12. The evidence demonstrates that there certainly has been a history of various mental health conditions suffered by the Applicant over some time. Dr Giuseppe Giarrusso in a certificate to Centrelink dated 6 May 2014[5] identified the Applicant as suffering from a primary condition of depression. This condition was described as “temporary”. The symptoms were identified as poor mood, poor sleep pattern, difficulty in concentration and episodes of anxiety. The report noted that the Applicant was currently taking an antidepressant known as “Lexapro 20 mg” and that she should remain on this for at least 12 months.

    [5] Document T3 of the T documents.

13. A further report prepared for Centrelink on 24 October 2014 by Dr Susanne Oldmeadow, general practitioner, was in evidence.[6] She once again diagnosed depression with symptoms being irritability, low mood, fatigue, and some anxiety. She concluded that the prognosis was likely to improve considerably within two years. She also recorded that the Applicant was taking medication to which there had been a “good response so far”.

    [6] Document T4 of the T documents.

14. An Employment Services Assessment Report prepared by a qualified social worker on 25 November 2014[7] identified the Applicant as suffering from depression of a type that was described as temporary. This report noted that the Applicant had commenced taking antidepressant medication and may be referred to a psychologist in the future. It also observed that she was currently experiencing serious symptoms relating to depression in that she was struggling to get out of bed, care for her kids, was feeling very fatigued, experiencing really low moods and socially isolating herself. It was further recorded that the Applicant was engaged in active treatment to improve her mental health. These observations, it should be recorded, are consistent with the opinions expressed in the previous medical reports by Dr Chan and Dr Oldmeadow.

    [7] Document T5 of the T documents.

15. Dr Oldmeadow prepared a further report on 19 January 2015[8] which referred to the depression suffered by the Applicant. It was noted that the Applicant suffered from anxiety, loss of confidence, and inconsistent energy levels. The prognosis expressed by the doctor was that the symptoms were likely to improve within two years. She repeated, as had been stated in earlier reports referred to above, that the Applicant was taking medication. However, that medication was not identified in terms of name, type, or strength.

    [8] Document T6 of the T documents.

16. Dr Chan further wrote in a report dated 3 August 2015[9] that the Applicant was suffering from depression, which was considered to be a temporary condition. The symptoms were that she was very tired and not sleeping. When requested to advise how long the symptoms would affect the Applicant’s capacity to work or study, Dr Chan expressed an opinion of between 3 to 12 months.

    [9] Document T7 of the T documents.

17. In a “Verification of medical condition form” (verification form) dated 26 October 2015,[10] Dr Chan recorded that the Applicant was suffering from anxiety and depression with symptoms of her being very tired, not sleeping well, unable to concentrate and suffering from nightmares. He noted that she was currently taking the antidepressant “Lexapro”.  Interestingly, when asked to tick the box that best described the Applicant’s prognosis, box number 2: “Permanent (likely to persist for 2 years or more)” was ticked. Dr Chan did not offer any explanation for this conclusion.

    [10] Document T8 of the T documents.

18. In an Employment Services Assessment Report of 23 November 2015 where the medical condition of depression was identified, it was also described as a permanent condition.[11] In that report the treatment program was identified as “prescribed medication”, and it was also noted that the Applicant expressed an interest in accessing counselling with a psychologist through her general practitioner.

    [11] The Employment Services Assessment Report is document T9 of the T documents. The portion of that report recording the Applicant's depression as "Permanent" is found on page 20 of the T documents.

19. A Centrelink Medical Certificate of 4 April 2016 from Dr Chan[12] recorded the Applicant’s conditions as anxiety and depression, which were described as temporary exacerbations of a permanent condition. Once again, treatment was identified as “Lexapro 20 mg”.

    [12] Document T10 of the T documents.

20. A further verification form from Dr Chan of 2 August 2016[13] (which it should be noted is relatively close to the qualification period, but not within it) repeated that the Applicant was suffering from depression and post-traumatic stress symptoms. The report also identified the symptoms of these conditions, however, unlike in the previous reports he referred to current treatment as including psychological counselling and SSRI treatment.

    [13] Document T11 of the T documents.

21. On 15 August 2016 the Applicant consulted Rebecca Thomas, an Organisational Psychologist, who conducted a psychological assessment of the Applicant.[14] Ms Thomas concluded that the Applicant presented “with symptoms consistent with Post Traumatic Stress Disorder (PTSD)” and highly recommended that she be referred to a psychologist for ongoing treatment and management. The referral to a psychologist was expressed by Ms Thomas as to enable the Applicant to seek “optimal treatment”.

    [14] Ms Thomas’ report is document T12 of the T-documents.

22. Having diagnosed the Applicant as suffering from PTSD, Ms Thomas and Dr Kylie Henderson, clinical psychologist, prepared a report of 29 August 2016. A future recommended treatment program was identified in this report. It was suggested that with appropriate and regular treatment the Applicant would see improvement in her symptoms within three months. It stated that “Without treatment, the symptoms may not improve significantly within the following 12 to 24 months.” It was repeated in the report that over the next two years, with psychological intervention, the condition was likely to improve. It was therefore recommended that she be referred to a psychologist for the ongoing treatment and management of her condition.

23. A Job Capacity Assessment Report (JCAR) of 24 October 2016,[15] prepared by a qualified social worker (presumably after having assessed the Applicant), noted that during the assessment the Applicant stated “she was keen to have her condition/medication reviewed by a psychiatrist but that had not occurred to date.” It also recorded that the Applicant would be contacting her general practitioner to arrange an appropriate referral. The JCAR concluded that because the Applicant “had not been reviewed by a psychiatrist, and a referral is likely to be arranged, this condition cannot be assessed as being fully diagnosed, treated and stabilised...” It was in this context that it also noted Dr Henderson’s conclusions that with appropriate treatment, some improvement in symptoms within three months was likely.

    [15] Document T15 of the T documents.

24. Dr Chan noted in a letter dated 28 December 2016 that the Applicant’s condition of PTSD was being treated with the antidepressant Lexapro from 2014 onwards; with the dosage increased from 20mg to 30mg following the advice of psychiatrist Dr Sumeet Kochar.[16]

    [16] Document T17 of the T documents.

25. A report to Centrelink of 10 February 2017 from Dr Chan recorded that treatment continued to be undertaken by the Applicant, namely the antidepressant Lexapro 20mg together with psychological counselling (although the nature and duration of the psychological counselling was not identified).[17] This report also noted that the Applicant had consulted a psychiatrist and that the future planned treatment was to continue with the management of the condition as in the past.

    [17] Document T-18 of the T documents.

26. An undated letter received by the Tribunal on 16 October 2017 from Dr Chan reported that the Applicant had been referred for psychological counselling sessions, beginning in November 2016, to deal with the trauma and anxiety issues from which she suffered.[18] He expressed the opinion that her condition had been stabilised, but “due to the history of her progression in relation to her health”, it was likely that she required “long-term and continual medical management.”

    [18] Document ST7 of the ST documents, page 171.

27. When “Additional Medical Evidence” was obtained by Centrelink on 15 November 2017 from Dr Chan,[19] he stated that the Applicant’s conditions of depression and anxiety had been diagnosed by a psychiatrist but there had been no treatment for PTSD. He noted that with respect to treatment there has been psychiatric assessment and psychological counselling in the past, and that antidepressant medication had been prescribed.

    [19] Document ST-2 of the ST documents.

28. “Additional Medical Evidence” was also obtained on 19 December 2017 from Dr Kochar, in which reference was made to the Applicant seeing Dr Kochar.[20] The record indicated that the Applicant only saw Dr Kochar on one occasion. This is consistent with the evidence given by the Applicant from the witness box, wherein she stated that she saw him and wasn’t very happy with him. When probed as to why she wasn’t very happy with him she described him as being cold towards her and that he advised her to increase the dosage of medication that she was taking. She stated she did not feel comfortable with this. However, she said she was happy to keep seeing the female psychologist she was currently consulting because she is very good. It was also noted in the Record that Dr Kochar had reported no indication of PTSD.

    [20] Document ST-3 of the ST documents.

29. A report of 8 March 2018 was prepared by Patricia Khalili, a psychologist.[21] It noted that the Applicant initially presented for psychological treatment on 29 February 2016 to address her mental health concerns. However, the author noted that “her attendance was brief and irregular during 2016 and 2017.” She diagnosed her as suffering from a major depressive disorder, PTSD and “Complicated Grief”. Ms Khalili also expressed the opinion that the Applicant should be “encouraged to continue with psychological treatment and/or medication to help decrease her psychological symptoms.” There was an emphasis in the letter on continuing with treatment.

    [21] Document ST6 of the ST documents.

30. The Respondent contends that it is not clear on the evidence whether the Applicant’s mental health conditions have been fully diagnosed. The Tribunal does not accept this contention.  The Tribunal is of the view that there is sufficient evidence to justify a full diagnosis of anxiety and depression throughout the qualification period. There is the consistent evidence of Dr Chan, which the Tribunal accepts.[22] There is also the psychiatric evidence of Dr Kochar, who diagnosed the depression. Similarly, with respect to PTSD, Dr Chan’s report of 28 December 2016 is accepted as providing a rational basis for making this diagnosis. There is also the letter of Ms Thomas of 15 August 2016 in which she concludes that the Applicant presents with symptoms consistent with PTSD. Her report is  corroborated by the additional report that she prepared with Dr Henderson on 29 August 2016, where PTSD was diagnosed. Ms Thomas and Dr Henderson are highly qualified mental health professionals whose opinions the Tribunal has no reason to doubt.

    [22] This is also consistent with the earlier diagnoses outside the qualification period by Dr Oldmeadow and Dr Giarrusso. In each of their reports they gave an unqualified diagnosis of depression and it included symptoms of anxiety. Also it should be recorded that of course in the Employment Services Assessment Report of 23 November 2015 the medical report of Dr Chan of 26 October 2015 referring to the condition of anxiety was noted without any qualification or doubt.

31. The Respondent suggested that there was no evidence that the condition of anxiety had been diagnosed by a psychiatrist or a clinical psychologist. Whilst this may be true, there was still the consistent opinion of Dr Chan. That opinion was not the subject of any contradictory or specialist medical evidence. The Tribunal considers that an Applicant presenting with a long-standing diagnosed condition being treated in a conventional fashion by a general practitioner should not have a conclusion rejected because a further examination by another medical practitioner might suggest some other diagnosis or treatment (the situation would be entirely different if there was any identified defect in diagnosis or treatment). It may be expected (as is usually the case) that an application for the DSP will be supported with a report properly prepared by the Applicant’s treating doctor. Such an Applicant is not required to foresee potential difficulties and obtain specialist advice and treatment before making such a claim (the Tribunal refers to the helpful decision of Gyles J in Harris v Department of Employment and Workplace Relations[23]). At the risk of repetition, the Tribunal, for the reasons outlined, accepts Dr Chan’s diagnosis of anxiety.

    [23] (2007) 158 FCR 252.

32. However, the Tribunal accepts the Respondent’s contention that the conditions of depression/anxiety and PTSD have not been fully treated or stabilised during the course of the qualification period. The reason for the Tribunal arriving at this conclusion is that there is a consistent pattern of opinion expressed by several professionals that recommended further treatment options. When the hierarchy of experts is examined this is apparent. Dr Kochar, although only seeing the Applicant on one occasion, did recommend increasing the dosage of antidepressants. This recommendation was steadfastly rejected by the Applicant for reasons noted earlier. He also recommended follow-up consultations with the Applicant. Neither of these recommendations were followed. This program of treatment seems rational and logical and regrettably it was not undertaken.

1. Then there are the reports prepared by Ms Thomas and Dr Henderson in August 2016, very close to the qualification period, which both recommended referral to a psychologist for further treatment. They both conclude that with further treatment from a psychologist there would have been an improvement in the Applicant’s symptoms. Their conclusions about the benefits to the Applicant if she were to be referred to a psychologist and undertake further treatment were extremely positive. This advice or recommendation was not followed by the Applicant. Ms Khalili also recommended continuing psychological treatment and medication to help manage the Applicant’s psychological symptoms. Similarly, Dr Chan on several occasions has recommended psychological counselling, psychiatric assessment, and varying the relevant medication. It is apparent that none of these options were undertaken by the Applicant in accordance with those recommendations.

2. Therefore, for those reasons the Tribunal concludes that the Applicant’s mental health conditions were not fully treated nor fully stabilised within the qualification period. As the mental health conditions were not fully treated or fully stabilised, an assessment under the relevant table of the Impairment Tables cannot be undertaken.

   POLYARTHRITIS

3. This condition was reported by Dr Chan in the verification form of 2 August 2016. No other observations were made in that report concerning the condition, nor were any present, or future treatment options identified.

4. The condition was described jointly with obesity in a report of 10 February 2017 by Dr Chan. Its manifestations were described as multiple joint pain, with treatment being identified as pain management. However, the nature of the pain management treatment was not recorded in this report.

5. In a JCAR of 17 February 2017 this condition was also referred to.[24] It noted that further investigations and tests were not planned. Continued pain management was also referred to, but no treatment options were identified.

   [24] Document T19 of the T documents.

6. The Applicant gave oral evidence that she had not been to see a specialist. She described the symptoms in her hands and knees as being such that she was simply unable to move them. She stated that the symptoms come and go. She conceded that the symptoms currently are not as bad as they used to be.

7. There is very limited medical evidence concerning this condition. Regrettably, there is no specialist opinion, nor have there been any medical images produced that might enable a more definitive conclusion to be reached. It is not too difficult to organise an appropriate form of medical imaging to be procured that would answer this question.

8. Therefore, the Tribunal accepts that there is insufficient corroborating medical evidence to conclude that the condition of polyarthritis is fully diagnosed, treated, and stabilised. This conclusion means that there is inadequate evidence to enable an impairment rating to be assigned to this condition.

   OBESITY

9. This condition was also referred to by Dr Chan in his verification form of 2 August 2016 in the section described as “Other medical conditions”. No treatment options were referred to by Dr Chan in that report.

10. Dr Chan’s report of 10 February 2017 noted that the Applicant suffered from obesity and was unable to reduce her body weight. Under the section of the report concerning future/planned treatment, dietary management was identified.

11. The JCAR of 17 February 2017 identified this condition as “Morbid Obesity”. It concluded that the condition was fully diagnosed. It noted a recommendation of dietary management, and that the general practitioner had recorded that the Applicant was “going in and out of diets”.

12. The undated letter from Dr Chan to the Tribunal, received on 16 October 2017, expressed an opinion that the Applicant’s obesity may be due to her use of Lexapro.

13. There is very limited evidence as to whether this condition has been fully treated and fully stabilised. This absence of evidence means that the Tribunal is unable to conclude that the condition has been fully treated and fully stabilised. Indeed, the medical evidence would indicate to the contrary, that there are management and treatment options open to the Applicant to address this condition. The recommendation with respect to the mental health conditions concerning ongoing psychological treatment also are applicable to the condition of obesity; and it seems likely that had the Applicant undertaken such treatment throughout the qualification period, some improvement in this condition was likely.

14. Once again, because of these considerations, in the absence of corroborating medical evidence, an impairment rating for this condition cannot be assigned.

    REFLUX OESOPHAGITIS

15. There is very little evidence concerning this condition. Dr Chan noted in his report of 10 February 2017 (outside the qualification period) that the Applicant suffered from this affliction. It does not appear in the earlier reports.

16. This condition was referred to in the two JCARs of 17 February 2017 and 2 January 2018.[25] It was noted that the condition was being generally well managed and caused limited or minimal functional impact. It was considered that the condition was verified as fully diagnosed, but that insufficient information had been provided to ascertain whether it was fully treated and fully stabilised.

    [25] Document ST4 of the ST documents.

17. Other than the diagnosis, there really is insufficient evidence for the Tribunal to reach a conclusion as to whether this condition has been fully treated or fully stabilised. Therefore, a rating under the Impairment Tables cannot be given to this condition. In addition, the Tribunal should observe that it appears this condition is quite well managed. To the extent that, even if it were found to be fully diagnosed, treated and stabilised, the condition does not show any symptoms sufficient to attract a rating under the relevant Impairment Tables.

    ASSESSMENT AND CONCLUSION

18. Having found that none of the conditions, for the reasons articulated above, have been fully diagnosed, treated and/or stabilised, no impairment rating can be applied under the Impairment Tables to any of the conditions from which the Applicant suffers. As no impairment rating under the Impairment Tables has been applied, because of the provisions of section 94(1) of the Act, which must be read cumulatively, the requirements of section 94 (1) (b) of the Act have not been satisfied. Therefore, the application must fail, The Tribunal further finds that the Applicant does not have a rating of at least 20 points under the Impairment Tables as required by section 94(1)(b) of the Act. It is therefore not necessary for the Tribunal to determine whether the Applicant has an inability to perform work within the meaning of section 94(1)(c)(i) of the Act.

19. The Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 13 July 2018

Date(s) of hearing:	23 May 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Cameron Munro, Department of Human Services