Robert Sheremetjev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 552
[2013] AATA 552
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3943
Re
Robert Sheremetjev
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Professor P ReillyDate 8 August 2013 Place Adelaide The Tribunal affirms the decision under review.
......................[Sgd]..................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – application for disability support pension rejected – diagnosis of depression, anxiety and ischaemic heart disease – whether incapacities are fully treated and stabilised – later primary psychiatric diagnosis – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), (2), (3), (4), (5), (6) and Schedule 1B
Social Security (Administration) Act 1999 (Cth) s 4
CASES
Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331
SECONDARY MATERIALS
Introduction to the Impairment Tables
REASONS FOR DECISION
Senior Member R W Dunne
Professor P Reilly8 August 2013
INTRODUCTION
Robert Sheremetjev (“applicant”) applied to the respondent for a disability support pension (“DSP”). The application form is dated 17 January 2011, but was received by the respondent on 19 January 2011. Following a Job Capacity Assessment, his application was rejected by the respondent on 15 April 2011. It was rejected on the basis that his heart condition could only be assigned an impairment rating of 15 points. This decision was affirmed by an Authorised Review Officer on 2 May 2011 and by the Social Security Appeals Tribunal (“SSAT”) on 5 August 2011. The applicant has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, the applicant was represented by Ms M Rudham (Solicitor) and the respondent was represented by Mr C Visser (from Program Litigation and Review Branch, Department of Human Services). We admitted into evidence the T Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·report of Doctor C Raeside dated 30 July 2012[2]; and
·the applicant’s Employment Pathway Plan (undated)[3].
[1] Exhibit R1.
[2] Exhibit A1.
[3] Exhibit R2.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are as follows:
(a)Is the applicant qualified for DSP from his date of claim or within 13 weeks of that date?
(b)Did the applicant have a “continuing inability to work” as at his date of claim or within 13 weeks of that date?
LEGISLATION
The criteria for the grant of DSP are set out in s 94 of the Social Security Act 1991 (“Act”), which reads:
“(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) 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.
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
…”
The Impairment Tables are referred to in paragraph 94(1)(b) of the Act. Paragraphs 4 and 5 of the Introduction to the Tables read:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”
BACKGROUND
The material facts in this case are not in dispute. Mr Sheremetjev is 49 years of age. He suffered from myocardial infarction in September 2007, which permanently damaged his heart. Dr Robert Welstead completed a medical report in support of Mr Sheremetjev’s application for DSP on 15 April 2008. In his report, Dr Welstead stated that the applicant was “unlikely ever to improve. Will slowly decline and require increasing medical attention.”[4] On 19 January 2011, Mr Sheremetjev made a second claim for DSP, and Dr A De Villiers provided a medical report in support of the claim on 18 January 2011. The report diagnosed depression and anxiety, and ischaemic heart disease and stated that the current impact of the heart condition on the applicant’s ability to function was expected to persist for more than 24 months.
[4] Exhibit R1, T21 at page 127.
In reviewing the decision of the Authorised Review Officer the SSAT decided that Mr Sheremetjev’s ischaemic heart disease had been fully diagnosed, investigated, treated and stabilised and attracted an impairment rating, under Table 1 of the Impairment Tables in Schedule 1B of the Act, of 20 points because it caused symptoms of shortness of breath at the 4-5 METs activity level. Mr Sheremetjev therefore satisfied paragraph 94(1)(b) of the Act.
A Job Capacity Assessment was conducted on 11 February 2011 by a registered psychologist, Ms Mary James. The medical conditions presented by Mr Sheremetjev were depression, anxiety, psychiatric disorder and ischaemic heart disease. The assessor found that the depression, anxiety and psychiatric disorder were not assessed as fully diagnosed, treated and stabilised at the assessment date. The ischaemic heart disease was assessed as fully diagnosed, treated and stabilised at the assessment date.
EVIDENCE OF THE APPLICANT
Mr Sheremetjev’s evidence was that he found it hard to mix with people. Before his heart attack he worked as a security guard, which involved physical endurance and risk. Since his heart attack he found shopping was difficult and he had to regularly “nap”. He suffered from insomnia and could not sleep at night. His depression and anxiety had existed for most of his life. He did not socialise much and often consumed spirits and used marijuana. Presently, he did not exercise much and had not walked his dog for the last 18 months. When he did do this, he sprained his ankle and suffered other injuries when the dog ran after his ball.
As part of his Employment Pathway Plan which was required by the respondent, the applicant undertook a Certificate in Automotive Studies. This mostly involved theory and was designed to show that he could become an apprentice mechanic. Ten other people attended the course, but the applicant needed to take alcohol and smoke marijuana in order to take part. If he was unable to take these substances, he would suffer panic attacks and could not socialise. In relation to his depression he took medication, but became angry and gave up what he was taking. He said he felt like a “lab rat” and instead would self-medicate with alcohol or drugs. He had attended several sessions with a psychiatrist, but these did not go well because the sessions were too costly. When asked about the future of his heart disease, he said he thought it was unlikely to improve. He saw a cardiologist once a year and his general practitioner retained the records.
His heart attack in 2007 had been sudden and a stent had been implanted. At the time of the attack, he suffered shortness of breath and, more recently, because of his weight problem, he suffered excessive sweating, could not walk for more than 100 metres and had stopped walking his dog. Then, if he walked more than 100 metres, he felt pressure on his chest, shortness of breath and his body would feel clammy. His general practitioner (Dr Worthley) had recommended that he should walk, but he had been unable to do this regularly. He said he started suffering from depression and anxiety around the time of his heart attack and had not seen a psychiatrist before that.
In cross-examination by Mr Visser, the applicant said that he still smoked and had gained 12 ½ kilograms in the last 12-18 months. He had a driver’s license and a license for a fork-lift. He had completed a technician’s course, but had to give it up because his body became “too electric”. He had not considered studying any more and had little work experience. He had worked as a security guard, but would have to be re-licensed and optimistically thought that he could do this again. He also thought he could undertake a night-fill position in a supermarket or could undertake trolley collection. He had not applied for licenses because he did not think he would be successful. When he worked as a security guard, it had been with AMP. He had ceased employment and had brought a successful action in Court for unpaid wages. When asked whether he would have the capacity to work for 15 hours per week, the applicant said that he would do so if he could find employment, because he needs the money. When referred to the Job Capacity Assessment report on 8 April 2011 and the reference in the report to the occasional session of binge drinking, the applicant refused to accept that this was the case. He said he obtained hobby-still whisky and “rough” marijuana from acquaintances which he used to self-medicate. At the time of his DSP claim, he said he would walk 5-6 kilometres most days with his dog, but this no longer occurred. He experienced shortness of breath and had to sit down on benches every 100 metres. He said, in doing this, he was pushing his limit. As far as work was concerned, he thought he could drive a tractor (seated) for 15 hours per week. He could not drive a taxi, however. When asked about his prescription drugs, he said he had been taking Lovan for seven weeks and, although it left him groggy, it did not have any other side effects. He said his heaviest physical activities now involved standing under a shower. In the rented room he occupied, he did not do any housework, but prepared simple meals. The owner of the premises did other work, including the vacuuming of carpets.
In re-examination by Ms Rudham, the applicant said that, with work, he could not stand for three hours per day. He could drive an old tractor, but could not change any equipment. He could undertake security work with medication if he told his employer that he had a heart condition. However, he would not tell the employer unless he was asked. He said he could not kneel, squat or bend repetitiously and did not know if he could do night-fill work if that was difficult. In relation to his Court action against AMP, he said that taking alcohol and marijuana helped him through the stress of the proceedings. He also said that it had been stressful undertaking the hearing before this Tribunal.
CONSIDERATION
Is the applicant qualified for DSP from his date of claim or within 13 weeks of that date?
In his Decision Statement[5], in dealing with the medical conditions, the Authorised Review Officer found that the applicant’s ischaemic heart disease had been fully treated and stabilised and that the description of his symptoms was consistent with an impairment rating of 15 points under Table 1 of the Impairment Tables (Loss of Cardiovascular and/or Respiratory Function: Exercise Tolerance). The rating indicated an inability to undertake activities with a metabolic cost of 5-6 METs (that is, heavy exercise, manual labour or vigorous sports). Even considering his probable state at the time of his application (19 January 2011), it seems unlikely that the applicant could have performed with reasonable ease more than half of the activities listed for METs 5-6.
[5] Exhibit R1, T6 at pages 37-38.
The SSAT concluded that, at the time of his claim, the applicant had symptoms of shortness of breath at the 4-5 METs activity level, which equated to brisk walking (that is, moderate activities, encompassing more active daily activities with the exclusion of manual labour and vigorous exercise). The SSAT found that an Impairment Rating of 20 points for the applicant was appropriate. In our view, having regard to the evidence, we are satisfied that the finding of the SSAT was correct.
Did the applicant have a “continuing inability to work” as at his date of claim or within 13 weeks of that date?
A significant limiting factor in assessing the applicant’s entitlement to DSP is Schedule 2 of the Social Security (Administration) Act 1999 which provides in section 4 that the assessment of the degree of impairment is restricted to a period commencing on the day the claim is made and extending for a period of 13 weeks thereafter. The result in the present case is that the Tribunal must look at the applicant’s degree of impairment in the period from 19 January 2011 to 20 April 2011. (We note the SSAT decision refers to the claim on 6 January 2011. The claim at Exhibit R1, T19 is noted as received on 19 January 2011 at Centrelink Glenelg.)
As can be seen in paragraph 6 above, at the time of making his claim for DSP, Dr A De Villier provided a supporting medical report. The report diagnosed depression and anxiety as the Condition with the most impact, and ischaemic heart disease as Condition 2. The Job Capacity Assessment which was most proximate to the claim occurred face to face on 11 February 2011. The assessing psychologist found that the depression, anxiety and psychiatric disorder were not fully diagnosed, treated and stabilised at the assessment date. The ischaemic heart disease was assessed as fully diagnosed, treated and stabilised. In relation to Work Capacity, the assessor found a current base line work capacity of 8-14 hours per week and future capacity for work within two years with intervention of 15-22 hours per week. Examples of suitable work were for a light process worker, a ticket seller or a gate keeper.
Ms Rudham referred to the decision of Mr S Webb, a Member of the Tribunal, in Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [6] where he said at paragraph [23]:
“For the purposes of section 94 and the Impairment Tables in Schedule 1B it is not necessary for me to determine whether a particular diagnosis is correct. The correctness of a particular diagnostic label is perhaps of less moment for present purposes than the existence of documentation and the diagnosis of a particular condition. Dr Coleman’s diagnosis of generalised myalgia and the preceding documentation to which I have referred satisfies this requirement.”
[6] [2011] AATA 331.
Ms Rudham then referred to the report of Dr Raeside, where he said[7]:
“Current psychiatric state
Mr Sheremetjev simply reported remaining much the same with chronic depression, insomnia, little motivation, occasional suicidal thoughts, and ongoing anxiety, particularly around groups of people.
I note the documentation provided to me in which it is established that Mr Sheremetjev suffers from depression and anxiety, but Centrelink did not consider this to have been fully diagnosed, treated, or stabilised. The Appeals Tribunal particularly noted his lack of adequate psychiatric and psychological treatment. His cardiac condition appears to have attracted 20 impairment points, but not to the point where he was considered to have ongoing inability to work more than 15 hours a week. Psychiatric factors were not considered because of the above reasons.
Diagnosis
Based on the information available to me and from my interview with Mr Sheremetjev I believe that the primary psychiatric diagnosis is that of a Mixed Personality Disorder with borderline and avoidant traits. His chronic depression and anxiety appear to be functions of his underlying personality disturbance, likely arising out of his early childhood trauma. He appears to have a longstanding pattern of difficulty appropriately interacting with other people, beginning in his family, school, and subsequently in the workplace. His social relationships appear to be markedly limited. His mood has probably fluctuated depending on the level of stress that he has experienced, but he reported never having felt happy. There appears to have been significant impairment in his occupational and social functioning as a result of this underlying disturbance.”
[7] Exhibit A1, at page 8.
Ms Rudham then referred to what Dr Raeside further said[8]:
“In my opinion at present, Mr Sheremetjev’s underlying psychiatric factors related to his personality disturbance would attract ten rating points, at times aggravated further by his alcohol use. This would be in addition to any impairment related to his physical condition. I believe that his psychiatric disorder will lead to ongoing impairment in his occupational capacity and is likely to worsen with advancing age and unemployment. This is further aggravated by his general lack of skills in order to obtain work.
I therefore believe that Mr Sheremetjev’s personality disorder with associated depression and anxiety can be considered to the permanent. The chances of responding to any particular treatment, whether by medication of psychological therapy is quite limited. The condition can therefore be considered to be stabilised and will continue for more than 24 months, with ongoing impairment in his ability to participate in employment for more than 15 hours per week (albeit in conjunction with his underlying physical condition).”
[8] Exhibit A1, at page 10.
It is of particular note that Dr Raeside’s report is dated 30 July 2012, which is approximately 18 months after the applicant’s claim. For this reason, Dr Raeside’s “primary psychiatric diagnosis … of a Mixed Personality Disorder with borderline and avoidant traits” is outside the relevant period and must be questionable. It is also of note that, when cross-examined, Mr Sheremetjev said he would have the capacity to work 15 hours per week because he needed the money, and he would drive a tractor (seated) for this period. In this regard, the provisions of s 94(3)(b) are relevant, as is the meaning of “work” in section 94(5) of the Act.
On the evidence and having regard to the relevant provisions of s 94(3)(b) and s 94(5), we are satisfied that the applicant did not have a “continuing inability to work” at his date of claim or within 13 weeks of that date, and is thus not qualified to receive DSP.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne, Professor P Reilly ........................[Sgd]................................................
Administrative Assistant
Dated 8 August 2013
Date(s) of hearing 6 June 2013 Advocate for the Applicant Ms M Rudham Solicitors for the Applicant Rudham Lawyers Advocate for the Respondent Mr C Visser Solicitors for the Respondent Program Litigation and Review, Department of Human Services
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