Secretary, Department of Social Services and David Stark

[2015] AATA 424

[2015] AATA 424 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3539
Re	Secretary, Department of Social Services
APPLICANT
And	David Stark
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	16 June 2015
Place	Brisbane

The Tribunal sets aside the decision under review and decides in substitution that the respondent was not qualified to receive Disability Support Pension from 26 July 2013.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation decision – multiple medical conditions – psychiatric condition attracted insufficient impairment points at relevant time – shoulder condition not fully diagnosed, treated and stabilised at relevant time – medical criteria not satisfied – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (Cth) s 6

REASONS FOR DECISION

Senior Member Bernard J McCabe

16 June 2015

1. Mr Stark’s disability support pension (DSP) was cancelled on 26 July 2013 on the basis that his medical conditions did not attract sufficient impairment points in order to qualify for continued payments. Mr Stark applied for internal review of that decision as well as external review before the Social Security Appeals Tribunal (“the SSAT”).

2. On 30 May 2014, the SSAT set aside the cancellation decision and decided Mr Stark’s conditions did, at the relevant time, attract a total of 20 impairment points, and that

   
   

   Mr Stark had a continuing inability to work. The matter was remitted to Centrelink for reconsideration on that basis. The Secretary of the Department of Social Services – the applicant in these proceedings – disagrees with the SSAT’s assessment and has applied to this Tribunal for review. Mr Stark declined to appear at the hearing but provided a statement dated 1 May 2015 and asked that his case be considered on the papers.

3. I am not satisfied Mr Stark’s conditions can be allocated more than 10 impairment points. I therefore set aside the decision of the SSAT and decide in substitution that Mr Stark was not entitled to DSP at the time his payments were cancelled in July 2013. I explain my reasons below.

   THE LEGISLATION

4. Section 94(1) of the Social Security Act 1991 (“the Act”) establishes three principal ‘medical criteria’ that an applicant must satisfy in order to qualify for DSP.

   
   The first requirement, set out in s 94(1)(a) of the Act, is that the individual must experience a physical, intellectual or psychiatric impairment.

   There is no doubt Mr Stark satisfied that first requirement in July 2013. The Secretary has referred to evidence from Mr Stark’s treating medical practitioners that, at the relevant time, Mr Stark suffered from major depression and anxiety, and a rotator cuff injury to the right shoulder.

5. At the time his DSP was cancelled, there was also evidence that Mr Stark suffers from hypothyroidism and benign prostate hyperplasia, is a haemochromatosis carrier and has a fatty liver. However, Mr Stark’s general practitioner reported that those conditions were, at the time, generally well-managed with minimal or limited impact on Mr Stark’s level of functioning (see exhibit one at pp 117; 133; 150 and 223), and so I will not consider them any further.

6. The second criteria, set out in s 94(1)(b) of the Act, requires that Mr Stark’s conditions must have attracted a total of 20 impairment points under the Impairment Tables at the time his DSP was cancelled. The Impairment Tables are published in an instrument called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). In order for a condition to be allocated an impairment rating, it must be permanent within the meaning of s 6(4) of the Determination. A condition is regarded as permanent if it is
   fully diagnosed, fully treated and fully stabilised within the meaning of s 6(5) and s 6(6) of the Determination, and is more likely than not to persist for more than two years:
   s 6(4) of the Determination.

7. If a total of 20 impairment points can be allocated in respect of Mr Stark’s conditions as they were in July 2013, I must then consider whether he satisfies the third criteria
   in s 94(1)(c) of the Act, which requires that Mr Stark have had a continuing inability to work.  

   THE MEDICAL EVIDENCE

   Major depression and anxiety

8. Mr Stark says his depression and anxiety condition is the result of a combination of factors. In a letter to the Tribunal dated 1 May 2015, Mr Stark refers to his marital breakdown (and the legal process that flowed from that) as one of the leading causes of his illness, as well as “political situations/news” and “job prospects”. He says these “triggers” are not present in Thailand, where I was told he has stayed intermittently since August 2011. Mr Stark says he has remarried in Thailand and enjoys the close support of his wife and her family there. He also says that, unlike in Australia, he has the opportunity in Thailand to gain work teaching English. Mr Stark says he finds the environment in Thailand “refreshing” and free from the stressors that make life difficult for him here in Australia.

9. Mr Stark’s treating health professionals in Australia described his mental health impairment while in Australia as severe. However, the Secretary points to evidence suggesting the severity of the impact of Mr Stark’s mental health condition fluctuates: both Mr Stark’s treating general practitioner and psychologist acknowledge the impact of Mr Stark’s depression and anxiety is minimised when he returns to Thailand.

10. The SSAT noted this case is unusual in that the level of Mr Stark’s functional impairment appears to vary according to his location. However, the SSAT concluded

    
    

    Mr Stark’s qualification for DSP should be assessed by reference to his condition as it appears while he is in Australia (see exhibit one at p 7). The SSAT allocated

    
    

    20 impairment points under Table 5 of the Determination (which deals with mental health function) and held Mr Stark did, in fact, qualify for DSP in July 2013.

11. The  Secretary has since produced two reports prepared by a consultant psychiatrist that do not support an allocation of more than 10 points under Table 5 when Mr Stark was  present in Australia. The findings of the consultant psychiatrist form the basis of the Secretary’s appeal, and I must consider whether I should reach a different conclusion to the SSAT.

12. The medical evidence that supports Mr Stark’s case includes four reports provided to Centrelink from his treating general practitioner, Dr Pienaar, and two reports from his psychologist, Ms Ellis. There is also a report from Mr Stark’s previous treating general practitioner, Dr Davis, from June 2011.

13. In describing Mr Stark’s ability to function at the time of cancellation, Dr Pienaar consistently reported Mr Stark was “very depressed” (exhibit one at p 146), had difficulty concentrating and struggled with poor sleep and lack of motivation. Dr Pienaar also referred to Mr Stark feeling “emotional” and experiencing “suicidal thoughts” (see, for example, exhibit one at p 218). Each of Dr Pienaar’s reports predicted that the impact of Mr Stark’s depression and anxiety was expected to persist for more than 24 months (and, according to one report, might persist for up to five years: exhibit one, p 146).

    
    

    That evaluation accords with Dr Davis’s earlier report (exhibit one at p 96ff), which refered to Mr Stark’s “reduced cognition/energy/motivation” (exhibit one at p 98). 

14. In her report dated 20 March 2014, Ms Ellis noted she had been treating Mr Stark since 2009 and that he had visited her clinic on a monthly basis while in Australia (exhibit 5). Ms Ellis noted she is not a clinical psychologist or psychiatrist and was therefore unable to make a diagnosis of Mr Stark’s depression for the purposes of determining his eligibility for DSP. However, her evidence is consistent with that of Drs Pienaar and Davis, and confirms that Mr Stark’s symptoms as at July 2013 “impact[ed] on most daily activities” (exhibit one at p 265). Ms Ellis’s evidence also refers to the fact that living in Australia appeared to exacerbate Mr Stark’s condition. She said in her report dated

    
    

    3 October 2013 that his condition, “since returning to Australia, [had] again deteriorated” and that Mr Stark was “feeling helpless and with very few options for productive living” (exhibit one at p 252).

15. According to Dr Pienaar, Mr Stark’s ability to function as a result of his depression and anxiety was expected to fluctuate, depending upon where Mr Stark lived (exhibit one

    
    

    at p 129; see also exhibit one at pp 114; 129 and 219).  (I note that prognosis varied slightly in one report, where Dr Pienaar did not express an opinion of the likelihood of Mr Stark’s condition improving over the following two years but said the impact on

    
    

    Mr Stark’s function would “remain unchanged” over the following five years: exhibit one at p 146.) Ms Ellis also considered Mr Stark’s condition to be “stable and serious”, and she reported that his symptoms were likely to worsen if he did not return to Thailand: exhibit 5.

16. In a letter dated 18 August 2014, Welfare Rights Centre Inc submitted on Mr Stark’s behalf that the fact that Mr Stark reported experiencing lesser symptoms during his holidays to Thailand should not preclude a finding that he met the criteria in s 94(1)(b) of the Act in July 2013. They said:

    [T]emporary periods of lesser symptoms whilst on holidays for a maximum of three to four months in another country with a new girlfriend do not outweigh the significant evidence from [Mr Stark’s] treating professionals of his longstanding depression and severe symptoms when living in his usual home in Australia.

17. But that letter proceeded from the basis that the medical evidence supported a finding

    
    

    (as it did in the decision of the SSAT) that Mr Stark’s condition in July 2013 met the criteria for 20 impairment points under Table 5 of the Determination. That brings me to the evidence of Dr Jetnikoff.

18. Dr Jetnikoff, a consultant psychiatrist, assessed Mr Stark on 17 October 2014 – after the SSAT handed down its decision in May 2014. His two reports dated 31 October 2014 and 29 April 2015 are reproduced in these proceedings as exhibits 7 and 9 respectively. Dr Jetnikoff confirms Mr Stark’s Adjustment Disorder with Anxiety and Depressed Mood was fully diagnosed, treated and stabilised at the relevant time for the purposes of s 94(1) of the Act, but he disagrees that Mr Stark’s condition should have been allocated

    
    

    20 points under Table 5 in July 2013. Dr Stark concludes (exhibit 7 at p 16):

    In my opinion, the impact of [Mr Stark’s] adjustment disorder while in Australia is limited and not severe in nature and I believe it is best described by most of the categories in the impairment rating for 10 points.

19. Mr Stark said in his letter dated 1 May 2015 that he had seen Dr Jetnikoff only once and that, in light of that fact, the Tribunal should prefer the evidence of Ms Ellis. It is true that, at the relevant time, Dr Pienaar and Ms Ellis had been treating Mr Stark with some regularity and agreed his depression was severe and long-standing.

    
    

    However, Dr Jetnikoff’s evidence refers specifically to the descriptors in Table 5 and assesses Mr Stark’s functional impairment against those set criteria. His specialised training and experience in making psychiatric assessments also mean his evidence must carry particular weight.

20. Mr Stark asserted in his letter that Dr Jetnikoff “showed a very unprofessional bias against [Mr Stark]”. That was put to Dr Jetnikoff in the course of the hearing, but

    
    

    Dr Jetnikoff confirmed his opinion was formed solely on the basis of the information gleaned from his consultation with Mr Stark, with reference to the material that was before the SSAT.

21. Dr Jetnikoff is an experienced and well-credentialed expert with relevant expertise.

    
    

    His evidence as to the severity of Mr Stark’s functional impairment as a result of his psychiatric condition carries more weight than that of the applicant’s psychologist, who is not a clinical psychologist, or the applicant’s general practitioner, who does not possess relevant specialist qualifications. I therefore find that Mr Stark can only be allocated 10 impairment points under Table 5 of the Determination.

    Rotator cuff injury to the right shoulder

22. The hearing focused primarily upon the impairment rating that should be assigned in respect of Mr Stark’s depression and anxiety condition. The only other condition that the medical evidence identifies as impacting upon Mr Stark’s functioning is his right shoulder injury. Dr Pienaar reported Mr Stark has suffered from a rotator cuff injury since January 2013 (exhibit one at p 115), and the Secretary does not dispute that diagnosis. However, Dr Pienaar also indicated in March 2013 that the impact of

    
    

    Mr Stark’s treatment was yet to be seen: exhibit one at p 149. A job capacity assessment report completed on 13 September 2013 (exhibit one at p 228ff) confirmed Mr Stark had, at that time, been referred to a specialist, and that he had indicated he would pursue further treatments in the form of acupuncture and injections before considering surgery. It follows Mr Stark’s shoulder injury was not fully treated and fully stabilised at the time his DSP was cancelled in July 2013. It therefore cannot be awarded an impairment rating under the Impairment Tables: s 6(3)-6(6) of the Determination.

    CONTINUING INABILITY TO WORK

23. I have already said I prefer Dr Jetnikoff’s evidence that Mr Stark’s depression and anxiety condition attracted 10 points under Table 5 in July 2013. Mr Stark’s shoulder condition cannot be allocated an impairment rating as it was not fully treated and stabilised in July 2013, and his other conditions do not attract an impairment rating as they were reported as having only a minimal impact upon his functioning.

    
    

    Mr Stark therefore has a total of only 10 impairment points. Mr Stark thus fails to satisfy the requirement in s 94(1)(b) of the Act, and cannot qualify for DSP. It is therefore unnecessary for me to consider whether Mr Stark has a continuing inability to work under s 94(1)(c) of the Act.

    CONCLUSION

24. Additional medical evidence that was not before the SSAT suggests Mr Stark’s functional impairment, even in Australia, was not of sufficient severity to attract

    
    

    20 impairments points at the relevant time. I therefore set aside the decision of the SSAT and decide in substitution that Mr Stark was not eligible for the DSP at the time his payments were cancelled in July 2013.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 16 June 2015

Date of hearing	8 May 2015
Solicitors for the Applicant	Australian Government Solicitor