Shaer and Secretary, Department of Social Services (Social services second review)
[2015] AATA 1005
•22 December 2015
Shaer and Secretary, Department of Social Services (Social services second review) [2015] AATA 1005 (22 December 2015)
Division
GENERAL DIVISION
File Number
2014/6408
Re
Vivien SHAER
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 22 December 2015 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY – disability support pension – whether condition is severe – 20 impairment points – whether there is a continuing ability to work - decision affirmed
Cases
Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294
Legislation
Social Services Act 1991 s 94
Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
22 December 2015
INTRODUCTION
In 2008 Mrs Shaer, the Applicant, was granted a disability support pension (DSP) by Centrelink on the basis of back and neck pain, migraine, anxiety and depression and pulmonary embolism. In November 2013 Mrs Shaer made enquiries of Centrelink about going overseas for longer than six weeks. As a result of this enquiry, Centrelink undertook a review of Mr Shaer’s qualification for DSP. Centrelink is the service provider for the Department of Social Services, the Respondent.
On 14 July 2014 a Centrelink officer determined that Mrs Shaer was not qualified for DSP because her impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 28 August 2014 a Centrelink authorised review officer (ARO) affirmed this decision. Mrs Shaer sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 22 October 2014 the SSAT affirmed the ARO’s decision. This matter is a review of the SSAT decision.
HEARING
At the hearing Ms Jamilee Shaer, the Applicant’s daughter, represented Mrs Shaer, who was in hospital. Ms Shaer gave evidence under affirmation by telephone and made submissions on behalf of her mother.
Ms Vincci Chan represented the Respondent, also by telephone.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I took in as evidence the Respondent’s Statement of Facts, Issues and Contentions dated 18 August 2015, together with the following Supplementary T-documents:
·ST1 – Report by Sue Troupakis, a Registered Psychologist, dated 10 May 2015;
·ST2 – Report by Dr Rajiv Siotia, dated 2 July 2015;
·ST3 – Report by Dr Siotia, dated 27 July 2015;
·ST4 – Report by Dr Nofreet Dawood, dated 7 September 2015;
·ST5 – Report by Dr Siotia, dated 9 September 2015;
·ST6 – Job Capacity Assessment (JCA) Report, dated 19 October 2015, together with three attachments.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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.
A person’s impairment is assessed by reference to the Impairment Tables.
RELEVANT DATE
In the Statement of Facts and Contentions the Secretary contends that Centrelink made a decision to cancel the Applicant’s DSP on 14 July 2014 after finding that she did not satisfy paragraph 94(1)(b) of the Act. The Tribunal must therefore consider whether the Applicant was qualified for DSP on the date of cancellation only (the relevant date). In support of that contention Ms Chan referred to the decision of the Federal Court in Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294 (18 August 1988).
Freeman was an appeal from a decision of the Administrative Appeals Tribunal which affirmed an earlier decision of the Department to cancel the applicant’s widow’s pension. In his reasons Davies J. considered the relevant date to be applied. At para 9 he said:
The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman’s widow’s pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.
Following the reasoning in Freeman, I must determine whether the decision to cancel Mrs Shaer’s DSP on 14 July 2014 was the correct or preferable decision. The relevant date for this matter is therefore 14 July 2014.
ISSUES
Accordingly I must decide if, on 14 July 2014, Mrs Shaer satisfied the provisions of section 94(1) of the Act. That is:
·Whether she had any physical, intellectual or psychiatric impairments; and, if so
·whether the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·whether she had a continuing ability to work.
EVIDENCE
Ms Shaer said that her mother was granted DSP in 2008. She said her mother’s depression was diagnosed by Dr Malak, a psychiatrist. Her mother has been on medications for depression since that time.
In July 2014 Mrs Shaer’s DSP was cancelled because her disabilities did not attract sufficient impairment points. Ms Shaer said that her mother was still taking medications for her depression but was not seeing a psychiatrist or psychologist. She is being treated by her general practitioner (GP).
Ms Shaer said her mother was involved in a car accident in 2008. The accident left her more depressed. She said her mother is in hospital at the moment as she has attempted to take her own life twice in the last two weeks. Ms Shaer thinks that this latest situation may have been caused by the most recent medications. She says the medications are to be changed back to those prescribed in 2008.
Responding to questions from Ms Chan, Ms Shaer agreed her mother was first examined by Mrs Troupakis, in March 2015. Ms Shaer was not sure whether Mrs Troupakis changed her mother’s medications; however it was possible.
Ms Shaer agreed that her mother was first seen by Dr Siotia on 9 May 2015. She said Dr Siotia changed her mother’s medications from Xanax Valium as described in Dr Siotia’s report (ST2). Ms Shaer said the medications were changed again about the end of October 2015. She opined that the different medications led to her mother’s attempted suicide and added that her mother will be taken off those medications.
When asked if she observed the improvement in her mother’s depression as reported by Dr Siotia (ST2), Ms Shaer said she was not sure, there was not much of a change. Ms Chan referred to the report of the JCA (ST6), in which he reported a telephone conversation he had with Mrs Troupakis who said that Mrs Shaer has benefited from this treatment, with her symptoms improving from severe to moderate. Ms Shaer agreed that her mother had improved at that time.
Ms Chan asked whether Mrs Shaer’s back and neck conditions were in dispute in this matter. Ms Shaer said that they were not.
TRIBUNAL CONSIDERATIONS
The Respondent concedes, correctly in my opinion, that at 14 July 2014 Mrs Shaer had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Back and neck pain;
·Depression; and
·Other Conditions, comprising pulmonary embolus, migraines and gastro-oesophageal reflux disease (GORD).
This concession is supported by the evidence and I find accordingly.
I must now determine whether Mrs Shaer’s impairments attract an impairment rating of 20 points or more under the Impairment Tables, according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
I will consider each condition in turn.
Back and Neck Pain
In its findings the SSAT awarded an impairment rating of 10 points to this condition. In the Statement of Facts and Contentions the Secretary submits that the condition should be assigned a rating of 10 points. This submission was re-iterated by Ms Chan at the hearing. Ms Shaer agreed that she was not disputing this condition.
I am satisfied that the available evidence supports the finding of the SSAT and the Secretary’s submission. I find that Mrs Shaer’s back and neck pain attract an impairment rating of 10 points.
Depression
It is not in dispute that this condition has been fully diagnosed.
The Introduction to Table 5 Mental Health Function (of the Impairment Tables) requires the diagnosis to 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 by a psychiatrist). In his report dated 21 November 2013 (T-documents page 85) Dr Dawood reported that the onset of depression occurred in 2007 and that the diagnosis had been confirmed by a psychiatrist, Dr Malak. As the diagnosis has been made by a psychiatrist I find that the depression has been fully diagnosed.
In considering whether the condition is fully treated and stabilised I note the following reports:
·by Dr Dawood, dated 21 November 2013 (T-documents, pages 85-86), which recorded a consultation with Dr Malak in December 2004, six years of treatment with Endep 50mg and psychotherapy treatment of three to four months in 2009. Future treatment is shown as A/A (as above) with non-pharmaceutical psychotherapy.
·by Dr Minogue, Medical Advisor, Health Professional Advisory Unit (HPAU), dated 19 March 2014 (T-documents, pages 91-92) which recorded:
oThe long-term GP Dr N Dawood also completed a DSP ‘Review for Portability’ medical report dated 21 November 2013 … The Condition 2 diagnosis was of depression, confirmed by a psychiatrist and psychologist. It appears however that the psychiatric assessment took place in December 2004, with no evidence of a subsequent follow-up. The nominated psychologist has an AHPRA endorsement in counselling psychology but not clinical psychology. Treatment with amitriptyline (a largely superseded antidepressant) has been ongoing since 2007.
oOpinion … It is considered reasonable for the psychological condition to be deemed not FDTS at this stage, due to the apparent lack of psychiatrist or clinical psychologist involvement in her care since 2004. … As noted above amitriptyline is now seldom prescribed for depression, having been very largely replaced by more recently developed antidepressant classes with a less troublesome side-effect profile. Specialist psychiatric review of the customer’s treatment needs is quite likely to be of substantial benefit for her mental health and overall well-being.
·JCA report dated 16 March 2014 (T-documents, pages 95-96) which records:
oRemarks: Verified history of panic disorder since 2004 (however last medical documentation of this condition was in 2008) … Seen by a psychiatrist (Dr Youssef Abdel Malak) in Dec 2004. No evidence of psychiatric follow-up. Psychological counselling interventions at Epworth Rehab for mood, pain and stress management (from 18/06/2008 – 28/07/2008). Also seen by a psychologist endorsed in counselling psychology (Tanya Wallace) for 3-4 months around 2009. Previously trialled on Xanax and Diazepam for panic disorder.
oCurrent treatment: Endep 50mg.
oFuture proposed treatment: As above, together with non pharmaceutical treatment (psychotherapy).
oThere was insufficient evidence to deem this condition fully treated and stabilised given that: - there does not appear to be adequate specialist follow-up since the client was seen by an psychiatrist in 2004; and especially given ongoing strong side effects of Endep which has been ongoing since 2009 and which, in the case of treatment for depression, tends to have been replaced by newer drugs that are associated with fewer side effects as per discussion with a HPSU consultant.
·by Sue Troupakis dated 10 May 2015 (ST1) which recorded that Mrs Shaer commenced counselling with her on 25 March 2015;
·by Dr Siotia dated 2 July 2015 (ST2) which recorded:
oOn 19 May … Vivien also reported that her mood is quite low and scored it as 2/10…. After I first saw her on that day, I prescribed mirtazapine 15mg nocte and advised her to cease fluoxetine;
oOn 16 June 2015 …We had a discussion around various medication options and I have put her on Lexapro 10mg once a day. I reviewed her again a week later and she told me that her mood had improved slightly and scored it as 5/10;
oThere were no thoughts of self-harm … ;
·by Dr Dawood dated 7 September 2015 (ST4) in which he recorded Mrs. Vivien Shaer was on Endep 50 for Depression since 04.09.2008 and since then she has been on different anti-depressants. July 2014 she was still on Endep 50. Lovan was added on 26 March 2015 and Lexapro took the place of Lovan on 15 July 2015; and
·JCA report dated 19 October 2015 (ST6) which recorded:
oIn a phone conversation 06/10/15 with psychologist Sue Troupakis Ms Troupakis stated that the client has continued attending treatment sessions since the assessment sessions and has benefitted from this treatment, with her symptoms improving from severe to moderate; and
oDr Siotia confirmed in discussion 13/10/15 that Mrs Shaer’s symptoms had improved to be moderate.
I take particular note of the contemporaneous assessment by Dr Minogue. He had access to the relevant medical records and concluded that:
·Mrs Shaer had no psychiatric follow-up since 2004,
·She was still being treated with amitriptyline which has been largely replaced by more recently developed anti-depressant medications with less troublesome side-effects, and
·Specialist psychiatric review is likely to be of substantial benefit.
The merit of his opinions is supported by the reported improvement in Mrs Shaer’s condition since her consultations with Dr Siotia and treatment by Ms Troupakis. It is clear from the reports of both Dr Siotia and Ms Troupakis that Mrs Shaer is still undergoing treatment. From the evidence of Ms Shaer, regarding the recent hospitalisation of Mrs Shaer, it is clear that her condition is not yet stabilised. The evidence was that Mrs Shaer had attempted to take her own life twice within the last two weeks. This contrasts with the report of Dr Siotia (ST2) in which he recorded no thoughts of self-harm by Mrs Shaer.
From the above evidence I am not satisfied that, on 14 July 2014, Mrs Shaer’s depression was fully treated and stabilised and I find accordingly. As a result, I am not able to assign an impairment rating to this condition.
Other Conditions
In his report dated 3 December 2014 (T-documents, page14) Dr Dawood records Mrs Shaer’s other conditions, being pulmonary embolus, migraines and GORD, as being well managed and according to Mrs Shaer cause minimal impact on her ability to function.
These opinions re-iterate Dr Dawood’s earlier opinions recorded in his reports dated 11 November 2007 (T-documents, page 32), 6 February 2008 (T-documents, page 47), and 19 September 2008 (T-documents, page 75).
The conditions have existed for many years. Dr Dawood has included these conditions as medical conditions which affect Mrs Shaer’s ability to work. Dr Minogue has accepted the conditions for an assessment of their effect on functional impairment (T-documents, page 92). In his report of 16 April 2014 (T-documents, pages 94-97) the JCA states the conditions to be fully diagnosed, fully treated and fully stabilised.
I accept that the conditions were fully diagnosed, treated and stabilised and find accordingly.
The consistent medical evidence is that the conditions are well managed and cause minimal impact on Mrs Shaer’s ability to function. Accordingly, I assign an impairment rating of zero points to these conditions.
Total Impairment Rating
For Mrs Shaer’s conditions at the relevant date, I have found the following levels of impairment:
(a)Back and neck pain – 10 impairment points;
(b)Depression – not fully treated and stabilised – unable to assign an impairment rating; and
(c)Pulmonary embolus, migraines and GORD – minimal functional impairment - zero impairment points.
Therefore, the total impairment rating at the qualifying date is 10 impairment points.
CONCLUSION
The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied. Mrs Shaer does not satisfy the requirements of section 94(1)(b) of the Act. As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).
The result is that at the relevant date Mrs Shaer was not qualified for DSP and I find accordingly.
As Mrs Shaer was not qualified for DSP on 14 July 2014 I find that the decision to cancel her DSP was the correct and preferable decision.
DECISION
I affirm the reviewable decision.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 22 December 2015
Date of hearing 1 December 2015 Advocate for the Applicant Jamileh Shaer Advocate for the Respondent Vincci Chan, Department of Human Services
3
0
0