SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and DEELEY
[2011] AATA 338
•20 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 338
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4098
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
ROSEMARY CARMEL DEELEY
Respondent
DECISION
Tribunal Senior Member K Bean Date20 May 2011
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision of the Social Security Appeals Tribunal of 29 July 2009; and
(b) in substitution for that decision decides that Ms Deeley was not qualified for payment of Disability Support Pension on 27 November 2008 or within 13 weeks of that date.
..........................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Whether conditions permanent, fully diagnosed, treated and stabilised – Decision under review set aside.
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
REASONS FOR DECISION
20 May 2011 Senior Member K Bean introduction
1. The respondent in this matter, Ms Deeley, suffers or has suffered from a number of medical conditions including a psychiatric condition and a respiratory condition. On 27 November 2008, she made a claim for Disability Support Pension (DSP)[1].
[1] T3/72-82
2. On 12 December 2008, her claim was rejected[2] and on 15 June 2009, following a request for review by Ms Deeley, an Authorised Review Officer affirmed the decision to reject Ms Deeley’s claim[3].
[2] T3/17
[3] T3/5-9
3. Ms Deeley then applied for review of that decision to the Social Security Appeals Tribunal (SSAT) and on 29 July 2009 the SSAT found that Ms Deeley was qualified for DSP from the date of her claim.
4. However on 1 September 2009, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the applicant) applied to this Tribunal for review of the decision of the SSAT, giving rise to these proceedings.
legislation and issues
5. Section 94 of the Social Security Act 1991 (the Act) sets out the circumstances in which a person is qualified for DSP and relevantly provides as follows:
“94 Qualification for disability support pension
(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
…
(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).
…”
6. The Social Security (Administration) Act 1999 (the Administration Act) provides that the start day for a qualified DSP claimant is the date of claim[4]. Therefore qualification and impairment ratings must be determined as at the date of claim. The only exception is where the person is not qualified on the date of claim but “will … become qualified” and “becomes so qualified” within 13 weeks of lodging a claim[5]. Therefore, in order for Ms Deeley to be entitled to receive DSP, it must be established that she was qualified to receive DSP on 27 November 2008, or within 13 weeks of that date.
[4] ss 41 & 42, Schedule 2 clause 3
[5] Schedule 2, clause 4
7. It follows that it is necessary for me to determine whether, at the relevant time:
(a)Ms Deeley had one or more physical, intellectual or psychiatric impairments;
(b)if so, whether the impairment or impairments rated at least 20 points under the Impairment Tables; and if so
(c)whether Ms Deeley had a continuing inability to work because of the impairment/s?
8. I propose to address each of these issues in turn, having regard to the evidence before me and the contentions of each of the parties.
does ms deeley have a physical, intellectual or psychiatric impairment?
9. The applicant did not dispute and I also accept on the evidence before me that Ms Deeley suffers from a respiratory condition which has been variously described by her doctors as bronchitis and/or chronic obstructive airways disease (COAD), and that this was in existence when she lodged her claim for DSP. The applicant also does not dispute that at the time she lodged her claim for DSP Ms Deeley suffered from a psychiatric condition which at that time was described as “depression and anxiety”.
10. I am accordingly satisfied that Ms Deeley suffers from or has suffered from those conditions, each of which constitutes or did constitute an “impairment” within the meaning of s 94.
11. For completeness, I should also note that there were a number of other medical conditions referred to in the material before me. However, Ms Deeley did not rely upon these in support of her claim for DSP and nor did the evidence suggest that any of them resulted in impairments capable of attracting a rating under the Impairment Tables.
do ms deeley’s impairments rate at least 20 points under the impairment tables?
12. In relation to the assignment of impairment ratings, the Introduction to the Impairment Tables[6] relevantly provides as follows:
[6] These are at Schedule 1B of the Act.
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.”
13. Having regard to the Impairment Tables, Mr Parker who appeared as advocate for the applicant, contended that Ms Deeley’s psychiatric condition did not attract a rating under the Impairment Tables as this was not permanent and indeed Ms Deeley did not currently suffer from a psychiatric condition. In relation to her condition of chronic bronchitis/COAD, he contended this was not “fully diagnosed, treated and stabilised” and therefore could not be considered “permanent” for the purposes of the Impairment Tables.
14. In light of these contentions, I propose to consider, having regard to the evidence, whether either condition can be regarded as permanent for the purposes of the Impairment Tables, or could be so regarded within 13 weeks of 27 November 2008.
The psychiatric condition
15. In her claim for DSP[7], one of the conditions referred to by Ms Deeley was “bad depression and anxiety”. Her general practitioner, Dr Wilczynska also provided a report to Centrelink dated 6 March 2009[8], in which she indicated that Ms Deeley
was suffering from “anxiety/depression”. In a letter dated 12 February 2009, Dr Wilczynska also mentioned that Ms Deeley had seen a psychologist in 2008 and that it was documented that she had been suffering from depression since 1998 and had been “seen frequently for counselling and medical treatment”[9]. A medical certificate provided by Dr Wilczynska on 29 August 2008 indicated that Ms Deeley’s depression/anxiety was an “exacerbation of existing condition” which was “likely to show considerable improvement within 2 years”[10].
[7] T3/74
[8] T3/22
[9] T3/32
[10] T3/35
16. In a further medical certificate completed by Dr Wilczynska on 1 December 2010, Dr Wilczynska stated that Ms Deeley’s anxiety/depression condition was “temporary”[11]. In a report dated 8 July 2010, Dr Wilczynska stated in relation to Ms Deeley’s anxiety/depression condition that:
“Mrs Deeley is currently being treated with antidepressant and psychotherapy. I feel that this has a significant impact on her ability to work and function. Mrs Deeley is often very disorganised, short attention, and tends to miss her booked appointments with specialists.”[12]
[11] Exhibit 4
[12] Exhibit 2
17. Dr Wilczynska also gave evidence at the resumed hearing on 21 March 2011. She said that she had seen Ms Deeley many times for depression and that Ms Deeley had reported being very stressed in December 2010 as a result of family issues. Dr Wilczynska also stated in her evidence that she considered that Ms Deeley’s main symptom was actually anxiety rather than depression. She considered Ms Deeley’s condition was not stable and could improve with further treatment, including anti-anxiety medication and psychotherapy. She confirmed that Ms Deeley had been referred to a psychologist previously, but had not attended or not persisted with this treatment.
18. At the request of the applicant, Ms Deeley was also examined by Dr Grantley Tschirn, a consultant occupational physician, on 22 October 2009 and 3 November 2009. On the basis of his examination, Dr Tschirn considered that Ms Deeley’s anxiety/depressive condition was “fully diagnosed, treated and stable”, being treated with the medication Avanza.
19. However, at the further request of the applicant, Ms Deeley was also examined by Dr Craig Raeside, psychiatrist, who has provided a report dated 17 August 2010. Dr Raeside concluded that Ms Deeley had been suffering from an adjustment disorder with mixed anxiety and depressed mood, but this had now resolved. He stated in his report:
“She continues to have some depressive and anxiety symptoms secondary to her physical health and the limitations in her lifestyle, but I do not think the psychiatric symptoms themselves are producing any significant impairment in her social or occupational functioning.”[13]
[13] Exhibit 7
20. He also stated in his report that at present he did not consider that she was suffering from a diagnosable psychiatric condition. However he also acknowledged that “her previous adjustment disorder may now be adequately treated”. He considered that her condition attracted a nil rating under the Impairment Tables.
21. Dr Raeside also gave evidence at the hearing. He acknowledged that Ms Deeley had suffered from recurrent episodes of an adjustment disorder, but confirmed his view that she was not suffering from an adjustment disorder, or any other psychiatric condition, as at the time of the hearing.
22. In light of this evidence, I have concluded that Ms Deeley has suffered from a psychiatric condition which is most accurately described as an adjustment disorder. However I have also concluded that that condition is not permanent and was not permanent at the time she lodged her claim for DSP or within 13 weeks of that date. I accept the evidence of Dr Raeside that in fact Ms Deeley does not currently suffer from any diagnosable psychiatric condition. I also note the evidence of Ms Deeley’s general practitioner, Dr Wilczynska, that, although she considers that Ms Deeley suffers from ongoing symptoms of anxiety and depression, Dr Wilczynska does not consider this condition to be fully treated or stabilised in any event. Therefore, even on the evidence of Dr Wilczynska, the condition is not permanent for the purposes of the Impairment Tables.
Ms Deeley’s respiratory conditions
23. Ms Deeley did not refer to any particular respiratory condition in her claim for DSP, although she did refer to “walking out of breath, smoke to [sic] much”[14].
[14] T3/75
24. However a discharge medical report from the Queen Elizabeth Hospital dated 25 December 2008 indicated that Ms Deeley was suffering from chronic bronchitis and possible early emphysema[15]. A report from Dr Wilczynska dated 6 March 2009 also recorded that she “may have early COAD as she is heavy smoker and has frequently chest infection”[16].
[15] T3/21
[16] T3/22
25. A practitioner then acting for Ms Deeley also arranged an assessment by Dr Jonathan Polasek, a Thoracic Physician of the Respiratory Medicine Unit at The Queen Elizabeth Hospital, and Dr Polasek has provided a report dated 16 August 2010. Unfortunately, he did not actually examine Ms Deeley, but he did have access to some of her medical records, including some pulmonary function tests.
26. Dr Polasek noted in his report that Ms Deeley had had chest infections which could be characterised as bronchitis in December 2008 and March 2010. He noted that Ms Deeley had a clinical diagnosis of chronic bronchitis and that the pulmonary function tests also suggested some restrictive lung disease of a mild nature. The doctor stated that he felt Ms Deeley “has probably mild chronic obstructive lung disease with possible concomitant chronic bronchitis”[17].
[17] Exhibit 5
27. Dr Polasek also referred to the Impairment Tables and noted that as a pulmonary function test on 25 September 2009 showed a “forced expiratory volume over one second” or “FEV1” of 2.23, this reflected a disability rating of nil or “at the most generous” 10 points under Table 2. He stated:
“I think Mrs Deeley’s current condition very much depends on her giving up smoking. I think she is at significant risk due to her heavy smoking for ongoing lung damage and deterioration over time. My feelings on what I have reviewed is that her condition is as stabilised as it can be under the current circumstances and the diagnosis of mild chronic obstructive airways disease with mild impairment would seem to be durable and reasonable.”[18]
[18] Exhibit 5
28. Dr Polasek has also provided a further report dated 5 November 2010 in which he referred to repeat pulmonary function tests on 7 October 2010, which showed an FEV1 of 2.13.
29. Dr Polasek also gave evidence at the hearing, confirming that he had not seen Ms Deeley in person. He also confirmed that he considered Ms Deeley was suffering from chronic bronchitis. He also referred to more recent pulmonary function tests which showed a FEV1, equating to an impairment rating of 10 under Table 2. He also agreed that she did suffer from COAD and had suffered an irreversible narrowing of her airways equating to an FEV1 of approximately 2.13 or 80 percent of predicted, which would attract a rating of nil under Table 2.
30. Dr Tschirn also assessed this condition when he saw Ms Deeley in late 2009. In his report of 10 November 2009, he said that he agreed with the diagnosis of “chronic obstructive pulmonary disease”. He stated:
“Regardless of minor diagnostic uncertainty, it is not clear at the present time, whether Ms Deeley’s treatment is optimal and whether, in fact therefore, her condition is stable.”
31. Dr Tschirn also undertook testing at his practice on 22 October 2009, which revealed a restriction in Ms Deeley’s lung function equating to an impairment rating of nil under Table 2.
32. In relation to the permanency of the condition, Dr Tschirn noted that Ms Deeley had not yet seen a respiratory physician although this was due to occur on 17 November 2009 and stated “respiratory physician assessment will help clarify treatment and stability. Once this is done the condition can then be described as fully diagnosed, treated and stable”.
33. In her medical report dated 8 July 2010, Dr Wilczynska indicated that she agreed with Dr Tschirn that Ms Deeley’s COAD “was not fully diagnosed and stabilised at that current time”. Dr Wilczynska stated:
“Since November 2009, Mrs Deeley had another assessment in the respiratory clinic in March 2010 which showed that her FEV1 decreased from 2.25 to 2.08 which demonstrates a decrease in lung function.
Currently Mrs Deeley is waiting for another assessment by the respiratory specialist in November 2010. Most likely Mrs Deeley has chronic obstructive airways disease, however, this is not fully diagnosed and documents at this current time. Mrs Deeley’s treatment for chronic obstructive airways is not currently stabilised … In my opinion Mrs Deeley requires further assessment of her lung by respiratory physician to optimise her treatment which is planned for November 2010.”[19]
[19] Exhibit 2
34. Dr Wilczynska also referred to this condition in her evidence at the resumed hearing. She said she still did not regard the condition as stabilised, noting that Ms Deeley still smokes as far as she is aware. She noted the best treatment for this condition was for Ms Deeley to give up smoking. Although an assessment by a respiratory physician had been scheduled for November 2010, at the time of the resumed hearing in March 2011, this had apparently not yet occurred.
35. In relation to the question of permanency, I note Dr Polasek’s opinion that Ms Deeley has suffered a permanent narrowing of her airways by reason of her COAD condition and to that extent she does suffer from a permanent condition. Dr Polasek also expressed the view in his report of 16 August 2010 that at that time Ms Deeley’s condition was “as stabilised as it can be …”.
36. Taken as a whole however, the medical evidence is clear that Ms Deeley’s conditions of chronic bronchitis and COAD have yet to be fully treated and stabilised as Ms Deeley has not been fully assessed by a respiratory physician or explored all of the available treatments, including giving up smoking. Certainly at the time Ms Deeley lodged her claim for DSP on 27 November 2008 or within 13 weeks of that date, Ms Deeley’s conditions had not been fully diagnosed, treated or stabilised as this was prior to any assessment by a respiratory physician.
37. Having regard to paragraphs 5 and 6 of the Impairment Tables, it is clear therefore that neither of Ms Deeley’s respiratory conditions was “permanent” in the requisite sense, at the relevant time.
38. For completeness, I should also add on the material before me the highest rating these conditions have attracted at any time is 10 points, which is insufficient to attract payment of DSP. Although the SSAT considered that Ms Deeley’s COAD resulted in an impairment rating of 40 points, the SSAT assigned that rating under Table 1 of the Impairment Tables. Having regard to the Guide to the Tables, it is apparent in my view that Drs Polasek and Tschirn have correctly assessed Ms Deeley’s impairment under Table 2[20]. They each concluded that she had a rating of nil or 10 under that Table. Therefore, even if Ms Deeley’s respiratory conditions were considered to be permanent in the required sense, which I do not consider they are, she would not qualify for payment of DSP.
[20] See the Guide to the Tables for the Assessment of Work Related Impairment for Disability Support Pension, at pp 25-26.
39. In light of my conclusions in relation to these conditions, and Ms Deeley’s psychiatric status, it is unnecessary for me to consider the question of whether Ms Deeley has or had a continuing inability to work by reason of any permanent impairment.
conclusion
40. Having regard to the evidence before me, much of which has been obtained subsequent to the decision of the SSAT, I have concluded that Ms Deeley did not meet the requirements for payment of DSP on 27 November 2008 or within 13 weeks of that date.
41. I have accordingly decided to set aside the decision of the SSAT and substitute a decision that Ms Deeley is not qualified for payment of DSP.
decision
42. The Tribunal:
(a) sets aside the decision of the SSAT of 29 July 2009; and
(b) in substitution for that decision decides that Ms Deeley was not qualified for payment of DSP on 27 November 2008 or within 13 weeks of that date.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ............J Coulthard..........................................
AssociateDates of Hearing 1 and 21 March 2011
Date of Decision 20 May 2011
Advocate for the Applicant Self-representedAdvocate for the Respondent Mr A Parker
Centrelink Advocacy Branch
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