Shand and Secretary, Department of Social Services (Social services second review)
[2020] AATA 76
•29 January 2020
Shand and Secretary, Department of Social Services (Social services second review) [2020] AATA 76 (29 January 2020)
Division:GENERAL DIVISION
File Number: 2018/0427
Re:James Shand
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:29 January 2020
Place:Brisbane
The Tribunal affirms the decision under review.
...........................[Sgd]...........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Dailey v Secretary, Department of Social Services [2015] FCA 1155
Dean and Military Rehabilitation and Compensation Commission [2010] AATA 388
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
JYHX and Secretary, Department of Social Services [2018] AATA 3093
May and Secretary, Department of Social Services (Social services second review) [2016] AATA 1061
Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745
Willis v Commonwealth [1946] HCA 22
REASONS FOR DECISION
Member D Mitchell
29 January 2020
INTRODUCTION
On 7 April 2017, Mr James Shand (the Applicant) aged 64, lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 3, T Documents, T61, Centrelink customer notes, page 301.
The claim was rejected on 29 May 2017,[2] on the basis that the Applicant did not have an impairment rating of 20 points or more.
[2] Exhibit 3, T Documents, T42, pages 221-222, Letter: Rejection of DSP claim.
On 2 November 2017, an Authorised Review Officer (ARO) affirmed the decision to refuse the Applicant’s claim for DSP.[3]
[3] Exhibit 3, T Documents, T57, pages 276-282, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 14 December 2017.[4]
[4] Exhibit 3, T Documents, T2, pages 3-10, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 29 January 2018.[5]
[5] Exhibit 3, T Documents, T1, pages 1-2, Application for Review.
In support of this application the Applicant has provided the Respondent and the Tribunal with a large number of additional reports from his treating medical practitioners. The Tribunal was also provided with the Applicant’s clinical notes from both Riverway and Northtown Medical Centres.[6]
[6] Exhibit 18, Applicant’s medical records – Northtown Medical Centre; Exhibit 19, Applicant’s medical records – Riverway Medical Centre.
On 3 September 2019, a Hearing was held for this application. The Applicant was represented by Mr Phil Nolan of Counsel, instructed by Legal Aid Queensland. The Respondent was represented by Ms Jacky Vetter of Sparke Helmore Lawyers.
It is not in dispute that the Applicant has a number of medical conditions which include: dementia; post-traumatic stress disorder (PTSD); depression; hernia; neck; left wrist; shoulder; and diabetes conditions.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP as including:
(a)Does the Applicant have a physical, intellectual or psychiatric impairment;[7]
(b)Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and
(c)Does the Applicant have a continuing inability to work?[9]
[7] Section 94(1)(a) of the Act.
[8] Section 94(1)(b) of the Act.
[9] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[10] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[11] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[12]
[10] Section 6(1) of the Determination.
[11] Section 6(2) of the Determination.
[12] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment is “permanent”; and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[13]
[13] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[14]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[14] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[15]
[15] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[16]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[16] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17]
[17] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[18] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table.[19] Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[20] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[21]
[18] Section 10 of the Determination.
[19] Section 10(3) of the Determination.
[20] Section 10(4) of the Determination.
[21] Sections 10(5) and (6) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[22]
[22] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[23]
[23] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[24]
[24] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 7 April 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 7 July 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
BACKGROUND
At the Hearing and in the Applicant’s Outline of Submissions dated 10 September 2019, the Applicant confirmed that whilst he suffered from a multitude of conditions during the Relevant Period, the critical ones that he was drawing the Tribunals attention to are:[25]
(a)Diabetes induced chronic osteomyelitis, resulting in amputation of the 3rd and 4th left toes;
(b)Major Depression;
(c)Post-Traumatic Stress Disorder (PTSD); and
(d)Dementia.
[25] Applicant’s outline of submissions, dated 10 September 2019, paragraph 8, pages 2-3.
At the outset of the Hearing, the Respondent provided an overview of the chronology in relation to why the Applicant stopped working in February 2017 and the treatment of his mental health and cognitive conditions thereafter. The Applicant did not dispute these facts. Relevantly:
(a)From at least July 2013 up until February 2017, the Applicant was working 12 to 14 hours per day, five times per week as a self-employed taxi driver.
(b)The Applicant suffered from a diabetic foot ulcer in his left foot from at least 2015 and was treated by the diabetic foot clinic from at least 19 February 2016. He also suffered from ongoing osteomyelitis in his left foot.
(c)By 23 November 2016, the Applicant’s treating team at the diabetic health clinic raised amputation of the Applicant’s first toe on the left foot. On 7 March 2017, the Applicant was admitted to Townville Hospital for amputation of his necrotic left third and fourth toes with osteomyelitis. The operation was not however performed at that time due to time constraints and the Applicant was rebooked for the surgery in late March 2017.
(d)The Applicant had already finished work as a taxi driver by this stage.
(e)
At his admission to hospital, the Applicant’s depression was listed as previous medical history and no further details were given. The Applicant underwent the surgery and was classified as unfit for work between 24 March 2017 and
28 April 2017. He was also certified as being unable to drive commercial vehicles, being his taxi, for six weeks and unable to drive his car privately for two weeks from that date.
(f)From 30 March 2017, the Applicant was provided with domiciliary care and outreach wound service care to assist with his self-care and independence in relation to the amputation of his toes. He was also referred at that stage to a social worker for financial enduring power of attorney and the National Disability Insurance Scheme.
(g)The Applicant lodged his claim for DSP on 7 April 2017 for physical conditions only. He did not indicate at that stage that he had any issues with his mental health. He said he was unable to take care of his feet or lift objects, and on that basis, he needed nursing home level of care.
(h)In a Job Capacity Assessment (JCA) Report dated 26 May 2017, the Assessor, relying on a previous JCA assessment dated 9 July 2013 that referenced a report of Dr Bangoy, general practitioner, recommended that 10 points under Table 5 of the Impairment Tables was appropriate in relation to the Applicant’s depression. The Assessor relied on the Applicant’s self-reporting only and the diagnosis provided in 2013.
(i)On 28 July 2017, the Applicant contacted the Respondent and is recorded in a customer record note as having said that, ‘his depression has a more significant effect than the 10 point impairment rating and he intended to get further evidence.’
(j)That same day, the Applicant presented to Dr Rahman, general practitioner, requesting a medical certificate for Centrelink and advising of his functional impairment.
(k)Dr Rahman then on 31 July 2017, referred the Applicant to Mr Tony Weightman, psychologist.
(l)The Applicant had four psychological sessions for treatment for his major depression at this stage.
(m)On 15 October 2017, Dr Rahman referred the Applicant to Dr Caniato, psychiatrist. Dr Caniato assessed the Applicant on 31 October 2017 and in a report of the same date made a diagnosis of major depressive disorder, post-traumatic stress disorder and multi-infarct dementia/vascular dementia/decline.
(n)There is no evidence before the Tribunal that the Applicant’s major depressive disorder was diagnosed by a psychiatrist or clinical psychologist prior to the Relevant Period.
(o)There is limited treatment that has occurred in relation to the Applicant’s major depressive disorder, which is limited to the prescribing of Venlafaxine at various doses from 2011.
(p)The Applicant had not commenced a program of support in the three years prior to lodging his claim for DSP.
It was not until the Hearing that the medical evidence in relation to the Applicant’s PTSD and dementia conditions and the contentions of the Applicant in this regard of the Applicant materialised fully. Consequently, the parties were provided with the opportunity to provide written submission after the Hearing.
It is noted that the Applicant did not himself provide evidence at the Hearing, on advice from his Counsel was that he was not well enough to do so.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.
It is not disputed that the Applicant has not participated in a program of support. Therefore, in order for his claim to be successful he needs to establish that he has a severe impairment.
In this regard the Respondent contends that only the Applicants diabetes induced chronic osteomyelitis condition resulting in the amputation of his 3rd and 4th left toes was fully diagnosed, fully treated and fully stabilised and can be assigned 5 points on Table 3 of the Impairment Tables. The Respondent contends that the Applicant’s other conditions cannot be considered permanent for the purposes of applying the Impairment Tables. In particular, the Respondent contends that the Applicant’s major depression, PTSD and dementia conditions were not fully diagnosed during the Relevant Period.[26]
[26] Secretary’s outline of submissions, dated 8 October 2018, page 2, paragraph 2.3.
The Applicant did not dispute the Respondent’s position in relation to his diabetes induced chronic osteomyelitis condition resulting in the amputation of his 3rd and 4th left toes. In contrast, however, contends that his major depression, PTSD and dementia conditions were fully diagnosed, fully treated and fully stabilised and should be assigned 20 points under both or at least one of Table 5 and Table 7 of the Impairment Tables.[27]
[27] Applicant’s outline of submission, dated 10 September 2018, pages13-18, paragraph 43-55.
The issues for the Tribunal to consider are:
(a)Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
(b)If so, did the Applicant have a continuing inability to work?
PRELIMARY MATTERS
Based on the medical evidence before the Tribunal and the contentions made by the Applicant and Respondent, the Tribunal is satisfied that:
(a)The Applicant’s hernia, neck, left wrist, shoulder and numerous other identified conditions (collectively, other conditions) were not permanent during the Relevant Period for the purposes of applying the Impairment Tables and the Tribunal is therefore unable to assign impairment points for these conditions.
(b)The Applicant’s diabetes induced chronic osteomyelitis condition resulting in the amputation of the 3rd and 4th left toes was fully diagnosed, fully treated and fully stabilised during the Relevant Period and should be assigned a 5 point impairment rating under Table 3 of the Impairment Tables.
The Tribunal acknowledges that the Applicant’s diabetes induced chronic osteomyelitis condition resulting in the amputation of the 3rd and 4th left toes and subsequent heart attacks also reasonably impacted upon his mental health during the Relevant Period.
Subsequently the remaining focus of this matter relates to the Applicant’s major depression, PTSD and dementia conditions.
EVIDENCE
Evidence provided in support of the Applicant’s claim for DSP
There is a substantial amount of medical evidence before the Tribunal from a number of medical practitioners relating to the Applicant’s claim for DSP. The reports relevant to those medical practitioners who provided evidence at Hearing will be set out below, just before their oral evidence.
Other relevant medical reports referred to in the oral evidence but provided by different medical practitioners is set out under this heading.
On 22 June 2013, Dr Bangoy, general practitioner completed a Centrelink Medical Report – Disability Support Pension in relation to the Applicant.[28] In the Report Dr Bangoy listed the second condition with the most impact upon the Applicant as depression with a date of onset being 2006, having been confirmed in 2006 by Dr Michael Stone, psychiatrist. The current treatment was listed as Effexor and counselling from 2006. Future treatment was also listed as Effexor and counselling. Symptoms were recorded as being depressed mood, no energy and insomnia. In relation to impact on ability to function, Dr Bangoy provided “[a]fter his related accident in 2006, started to be depressed, tired, insomnia”.[29]
[28] Exhibit 3, T Documents, T5, pages 79-89, Medical Repot – DSP by Dr Bangoy.
[29] Exhibit 3, T Documents, T5, pages 85-87, Medical Report – DSP by Dr Bangoy.
Dr Rahman, general practitioner saw the Applicant on 28 July 2017 and provided a Centrelink medical certificate. In this medical certificate Dr Rahman provided a diagnosis of anxiety/depression of which he said was an exacerbation of an existing condition and symptoms included disturbed sleep, stress, reduced concentration, financial stress, court case. He did not include any information in relation to treatment.[30]
[30] Exhibit 3, T Documents, T47, page 229, Medical Certificate by Dr Rahman.
On 31 July 2017, Dr Rahman provided a referral to Mr Weightman, psychologist attaching a GP mental health treatment plan.[31]
[31] Exhibit 3, T Documents, T48 pages 230-236, Medical Summary and mental health plan by Dr Raham.
In a letter dated 24 October 2017, Dr Rahman provided:[32]
“This is to inform you that [the Applicant] is on Effexor Xr Capsules which is a recommended treatment for depression. [The Applicant] is also seeing a psychologist who is happy with his progress and has stated his condition is stable.
[The Applicant] has been referred to see a psychiatrist who he will be seeing on 31st October 2017”.
[32] Exhibit 3, T Documents, T55, page 271, Medical Summary by Dr Rahman.
Ms Sandra Wickman, psychologist provided a report dated 27 June 2018. This report was sought by Legal Aid Queensland for an assessment of the Applicant’s functional capacity in relation to the Applicant’s diagnosis of infarct vascular dementia.[33]
[33] Exhibit 9, Report of Ms Sandra Wickman.
In providing her report Ms Wickman had regard to her clinical interview with the Applicant and the medical material she was provided with.[34]
[34] Exhibit 9, Report of Ms Sandra Wickman.
Ms Wickman provided a detailed history of the Applicant, his presentation to her in June 2018 and his functional impairment and testing results at that time. She did not express a view in relation to the Applicant’s situation during the Relevant Period outside of stating the diagnoses were consistent with her findings.
Ms Wickman closed her report with the following:[35]
“It is the opinion of the author, after both a clinical interview and the discussed assessment measures that [the Applicant] has significant functional capacity impairment which has increased in severity within the last six months and that he is likely to continue to decline in both physical and mental health in the future. [The Applicant] would be incapable of maintaining employment in any capacity and may soon require assistance with general household activities such as banking, home maintenance and food preparation”.
[35] Exhibit 9, Report of Ms Sandra Wickman.
Evidence of Dr Arora
Throughout the course of the Applicant’s claim for DSP Dr Arora has provided a number of medical certificates and reports. These were dated 20 April 2017,[36] 3 May 2017,[37]
7 June 2017,[38] 22 March 2018,[39] 2 August 2018,[40] 28 August 2018,[41] 2 September 2018,[42] and 22 September 2018.[43]
[36] Exhibit 3, T Documents, T39, page 200, Medical Summary by Dr Arora.
[37] Exhibit 3, T Document, T40, page 209, Medical Certificate by Dr Arora.
[38] Exhibit 3, T Documents, T46, page 228, Medical Certificate by Dr Arora.
[39] Exhibit 5, Report of Dr Arora dated 22 April 2018.
[40] Exhibit 11, Report of Dr Arora dated 2 August 2018.
[41] Exhibit 13, Report of Dr Arora dated 28 August 2018.
[42] Exhibit 14, Report of Dr Arora dated 2 September 2018.
[43] Exhibit 7, Questionnaire completed by Dr Arora.
The first mention by Dr Arora of the Applicant’s depression was in the medical certificate dated 7 June 2017. Dr Arora provided that treatment included multiple medications and psychologist.[44]
[44] Exhibit 3, T Documents, T46, page 228, Medical Certificate by Dr Arora.
In his report of 22 March 2018,[45] Dr Arora responded to a list of questions provided by Townsville Community Legal Service which did not reference the Relevant Period.[46]
Dr Arora provided that the Applicant had a diagnosis of major depression which was confirmed by a psychiatrist, treatment included cognitive behavioural therapy from psychologist, Effexor, treatment has been optimal with resolution of symptoms, as the condition is stabilised there is no further treatment planned and he does not consider that there is any other treatment that would help the Applicant to gain employment. Dr Arora said he had referred to Table 5 of the Impairment Tables and believes that the Applicant: “can easily be granted 20 points on Table 5 because he visits only familiar places, his daughter visits him regularly, his only contacts are his daughter, his doctors, used to have a social worker, he does have difficulty concentrating on day to day tasks making him disturbed frequently. He does lose track sometimes during long conversations and I have to bring him back on track”.[47]
[45] Exhibit 5, Report of Dr Arora dated 22 March 2018.
[46] Exhibit 4, Letter from Townsville Community Legal Centre.
[47] Exhibit 5, Report of Dr Arora dated 22 March 2018.
In a letter dated 2 August 2018, Dr Arora wrote to Legal Aid Queensland advising that he was confirming that he had read the report regarding the Applicant’s cognitive assessment and he agrees to it.[48]
[48] Exhibit 11, Report of Dr Arora dated 2 August 2018.
Dr Arora’s letter dated 2 September 2018[49] expanded on his letter of 28 August 2018.[50]
Dr Arora expressed the view that seeing a psychologist before 7 July 2017 might have helped the Applicant with his depression but not significantly because of his complex and uncontrolled diabetes with complications.[51]
[49] Exhibit 14, Report of Dr Arora dated 2 September 2018.
[50] Exhibit 13, Report of Dr Arora dated 28 August 2018.
[51] Exhibit 14, Report of Dr Arora dated 2 September 2018.
On 22 September 2018, in a response to a Legal Aid Questionnaire, Dr Arora provided that his opinion was that during the Relevant Period the Applicant’s mental health condition was unlikely to improve as it had been a chronic issue and that the Applicant was definitely not able to undertake any work within 2 years of the Relevant Period as he was going through a post-op period with solid stressors. In assessing the functional impairment arising from the Applicant’s mental health condition, Dr Arora expressed the opinion that the Applicant met the severe or extreme descriptors in relation to Table 5 of the Impairment Tables.[52]
[52] Exhibit 7, Questionnaire completed by Dr Arora.
At the Hearing before this Tribunal, Dr Arora gave evidence by telephone under affirmation. He:
·Confirmed that he is a general practitioner and that he had seen the Applicant at both the Riverway Medical Centre and Northtown Medical Centre.
·Confirmed that he had his clinical notes from the Northtown Medical Centre and a report by Ms Sandra Wickman, psychologist.
·
Confirmed that the reports/letters he provided dated 20 April 2017, 24 April 2017,
3 May 2017, 7 June 2017, 22 March 2018, 2 August 2018, 2 September 2018, and 22 September 2018 contain his opinions of which he reasonable held.
·Said he had treated the Applicant since at least 5 November 2010 and had treated and examined him between March 2017 and July 2017.
·When asked if he observed the Applicant’s cognitive abilities to be aligned with what Ms Wickman was saying at that point, in July 2017, he said yes he did notice things which Ms Wickman mentioned but not at that severity though.
·Said he remembered the Applicant forgetting to bring paperwork in from the car and that he would lose concentration, however it did not happen as frequently as what Ms Wickman expressed, so he believes the Applicant’s condition eventually worsened over a period of time.
·Said he recalled prescribing the Applicant Effexor in the past. He was unable to say whether that was before 2017 as he did not have his records from Riverway Medical Centre with him, but he strongly believed the Applicant was on some kind of antidepressant since he started seeing him. He did agree that if a prescription was written in his notes that is would be a fair representation of what happened at the relevant time.
·Confirmed that if someone reported symptoms of low mood, poor sleep, reduced motivation, and that these had been exacerbated due to ongoing personal factors and they were finding it difficult to interact with others and at times preferred not to leave the house that this indicates depression.
·Confirmed that based on his examinations of the Applicant between March and July 2017 it was his view that the Applicant was suffering from depression at that time.
·When asked if at that point in time if the Applicant was to have psychological counselling would he think that his condition would improve to the point where he would be able to work within two years – he said: “No”.
On cross-examination, Dr Arora:
·Confirmed that he had not been treating the Applicant since 2010 as he had started working in Australia in April 2015, however he use to go through the Applicant’s previous records when he was treating him.
·Said that he consistently treated the Applicant throughout 2015 to dress his foot and that from July 2016 the Applicant continued to have a diabetic foot ulcer and ongoing osteomyelitis in his left foot.
·When asked when a patient attends on him, whether he take notes to record what occurred during that session, he said: “Yes”.
·When asked if it is his normal practice to record any matter of significance to him, he said: “Yes, we do. Sometimes if we know that a particular symptom is going on already and we have recorded that in the past, we sometimes do not record it every visit”.
·When then asked would he suspect that he would record it at various stages throughout the patient’s presentation, he said: “Yes, yes, that is right”.
·Confirmed he was aware that copies of the Applicant’s clinical notes from both Riverway and Northtown Medical Clinics had been provided to the Tribunal.
·Confirmed that on 20 April 2017 the Applicant presented to him to fill out a disability support pension form and that he provided the report and listed the Applicant’s conditions as:
“Diabetes, hypertension, vascular complications of diabetes, chronic osteomyelitis of the foot, chronic left shoulder pain, incisional hernia and coronary artery disease”.
·When asked if these were the conditions that were affecting the Applicant most significantly at this stage, he said: “Yes. Yes, that is right”.
·Confirmed that the Applicant was working as a taxi driver prior to the amputation of his toes.
·Confirmed that the Applicant’s vascular complication of diabetes led to the amputation of his toes on his left foot and that after this the Applicant was provided with domiciliary care and outreach services to provide assistance in relation to his amputation.
·Confirmed that the Applicant presented to him on 3 May 2017 for a Centrelink Medical Certificate and that on this form he was asked to list all medical conditions and he completed the form listing chronic osteomyelitis left foot, amputation of toes, diabetes mellitus and coronary artery disease as the Applicant’s conditions.
·Confirmed that the Applicant presented to him on 7 June 2017 for another Centrelink Medical Certificate and that it was on this certificate he included depression and listed that he considered it was likely to persist and that treatment was multiple medications and psychologist.
·When put to him that he had not at that stage referred the Applicant to a psychologist, he said he did not remember if he had or had not.
·When asked if he remembered ever referring the Applicant to a psychologist, he said he is not sure he ever did make a referral to a psychologist or not. He said the Applicant was on medications and “he was doing pretty okay”. He remembered that sometime in 2015 he had tried to take the Applicant off the antidepressants, but he “didn’t do good” so he decided to keep him on antidepressants.
·When asked if he was saying that at that stage the Applicant was doing pretty okay, in relation to his depressive symptoms, he said: “On the antidepressants, yes, he was doing okay, but he was struggling time to time with that, with some flair ups and in between with his toes and his social circumstances and his family circumstances”.
·Said he developed a belief that the Applicant had more of a continuous depression with some flare ups here and there.
·Confirmed that in the Centrelink certificate he provided dated 7 June 2017 he did not record any symptoms the Applicant was suffering from.
·Confirmed he was aware that the Applicant was subsequently treated by Mr Tony Weightman, a psychologist.
·Agreed that the Applicant was treated by Mr Weightman from 3 August 2017.
·When asked if that was treatment he would have considered to be reasonable, he said: “Yes, seeing a clinical psychologist and being on antidepressants would be reasonable”.
·When asked if his opinion from 22 March 2018 was that the Applicant’s treatment has been optimal he said: “Yes, that would have been the best we could do”. He confirmed that the combination of psychological treatment and pharmacological treatment resulted in the resolutions of symptoms to some extent.
·When asked when he became aware of the Applicant’s diagnosis of PTSD, he said that he would need to see his notes, but he accepted it could have been after he read Dr Caniato’s report dated 31 October 2017.
·When asked when he became aware of the Applicant’s multi-infarct dementia, he again said it would be a bit hard for him to say but he thought he was aware of it before 31 October 2017.
·When asked about his report dated 22 March 2018 where he opined that the Applicant had an exacerbation of his depression in March 2017 and that treatment has been optimal with resolution of symptoms, whether he could tell the Tribunal when the symptoms resolved he said: “It would be a really tough question. Even looking at the notes it would be a tough question to answer”.
·When asked if the Applicant had an exacerbation of his depressive symptoms, would it have been reasonable to increase his dose of antidepressants he said: “Not really, because it’s not direct of the exacerbation of symptoms, if exacerbation of symptoms does not persist long enough, we do not increase the dose”.
·When asked if because he did not increase the Applicant’s medication at that time can the Tribunal take it that the level of impairment would not have continued for the next two years he said: “No, I don’t think so that the level of impairment would have improved with any further input from any antidepressant” where he was already at the moderate dose of that antidepressant”.
·Confirmed that his opinion on 22 September 2018 was that the Applicant had between a severe to extreme functional impact in relation to various descriptors. He said he agreed that he took into account the Applicant’s physical conditions as well, when he wrote the report. He said he believed that the Applicant’s physical and mental health conditions went hand in hand.
·When asked if he also took the Applicant’s PTSD and dementia into account, he said, he did not think so as he was aware of this but what he significantly noticed was that he had to repeat a few things, but that the Applicant was managing the dementia pretty well at that moment.
·Confirmed that at that time he considered the Applicant had a severe functional impact in relation to his self-care and independent living it was because he was seeking assistance from his daughter and a support worker from Kirwan Health Campus. He agreed that the assistance was majorly because of the Applicant’s recent amputation however said this was affecting him mentally as well.
·Confirmed that he knew the Applicant was living alone, required domiciliary care because of his amputation, and was unable to drive at the time because of the amputation.
·Agreed that the assistance provided by the Applicant’s daughter in taking him to the shops a couple of times was in the context of him being unable to drive rather than due to his depression.
·Confirmed that he had identified that the Applicant had a severe functional impact in relation to social, recreational activities and travel and that he formed this view because the Applicant’s daughter and a social worker took him shopping and that he needed help at that time, support not just because he could not drive.
·Accepted that as late as February 2017 the Applicant was able to continue to be employed as a taxi driver and would have been required to travel to unfamiliar areas. He said he remembered asking the Applicant about this and he said that he did not have any issues while driving taxis. He had said he [the Applicant] “was doing good” with work.
·Said that the main reason the Applicant stopped driving taxis was because of his amputation.
·When asked about the Applicant’s amputation and whether it was the reason for his depression, he said that the Applicant was very concerned about his toes and would get significantly anxious. He said: “So, it was very easy that he was significantly low and anxious and stressed because of his toes and he was hoping that he will not get any amputation, which eventually happened, which yes, made his symptoms a bit more persisting”.
·Confirmed that his view expressed in his letter dated 2 August 2018 was that he agreed with the cognitive assessment that was undertaken by Ms Wickman.
·Agreed that Ms Wickman had stated that she would potentially restrict the Applicant’s drivers licence, given his apparent geographical memory impairment and that this could also be a result of his dementia.
·When asked whether Ms Wickman’s opinion, as at 25 June 2018, that the Applicant may soon require assistance with general household activities such as banking, home maintenance and food preparation indicated that he would have been able to make decision and have had a better capacity in July 2017, he said: “Yes, relatively better”.
·Accepted that the first mention in the clinical notes that the Applicant was involved in court proceedings was on 10 August 2017.
·Agreed that the Applicant’s daughter was supportive and that he was able to maintain a relationship with her.
·Agreed that the Applicant’s PTSD and dementia would have had an impact on the Applicant’s interpersonal relationships.
·When asked why he had not recorded any issues with the Applicant’s concentration and task completion in his notes but had said that he had a severe functional impact, because activities were difficult due to a lack of concentration, he said he could give an example and told the Tribunal about the Applicant’s difficulty in following wound maintenance directions.
·When asked if he accepted that driving a taxi would require concentration for more than 10 minutes he said, it would but he held the belief that the Applicant liked driving a taxi and he was doing well with it, but when he stops driving the taxi the whole situation may get worse.
·When asked whether the Applicant being told he could not drive his vehicle privately for two weeks and his taxi for six weeks post his amputation whether this indicated it was likely that he would be able to concentrate for more than 10 minutes, he said: “Yes”.
·When asked if he would accept that there is an overlap in functioning with concentration with a condition of major depression and also, for example, cognitive decline from dementia, he said: “Yes”.
·When asked why his opinion in relation to the Applicant’s behaviour, planning and decision making changed between his reports of 2 and 22 September 2018 between being apt and being severely impaired, he said that his view that it was apt was in relation to when he was supported by his daughter. He confirmed that his knowledge of the support provided by the Applicant’s daughter was based solely off what the Applicant had told him.
When asked by the Tribunal why he had not listed the Applicant’s depression condition in the claim for DSP form, Dr Arora said that the condition would not be a considerable thing at the time.
On re-examination by the Applicant, Dr Arora:
·Said he did not recall discussing with the Applicant the effect that the amputation of his toes had on the Applicant mentally but what he definitely recalls is that the Applicant was significantly affected mentally by the amputation.
·Was referred to his report dated 22 September 2018 and referred to his earlier evidence that the difficulties he had outlined in that report could also be a product of the dementia that the Applicant was suffering from. He was asked if in his view there is any way of separating the two impairments [being depression and dementia], for example if someone has difficulties with memory, is there any way of separating the difficulties from a mental health point of view to the difficulties they would face as a result of dementia, he said: “It’s very difficult. It is so difficult that even in the textbook of John Murtagh, depression is said to be a pseudo-dementia. So, there’s a significant overlap of dementia and depression”.
Evidence of Dr Kaushal
On 18 April 2017, Dr Kaushal completed a Centrelink medical certificate in which he did not make any reference to the Applicant’s depression condition.[53]
[53] Exhibit 3, T Documents, T38, page 192, Medical Certificate by Dr Kaushal.
On 31 May 2017, Dr Kaushal completed a Centrelink medical certificate in which he diagnosed depression as the second medical condition and provided that the condition was permanent with date of onset being 2 January 2008 and symptoms being low energy, tired. Dr Kaushal did not provide any detail in relation to treatment for this condition.[54]
[54] Exhibit 3, T Documents, T43, page 223, Medical Certificate by Dr Kaushal.
On 4 April 2018, Dr Kaushal provided a letter in support of the Applicant’s claim for DSP.[55] This letter was substantially the same as that provided by Dr Arora on 22 March 2018.[56]
[55] Exhibit 6, Report of Dr Kaushal dated 4 April 2018.
[56] Exhibit 5, Report of Dr Arora dated 22 March 2018.
At the Hearing before this Tribunal, Dr Kaushal gave evidence by telephone under affirmation. He:
·Confirmed that he is a general practitioner and that he had seen the Applicant since at least 5 November 2010.
·Said he had been prescribing the Applicant Effexor at various levels. He said he had been seeing the Applicant for some time, however the Applicant also saw other practitioners as he [the doctor] had moved around practices.
·Confirmed that the reports/letters he provided dated 18 April 2017, 31 May 2017 and 4 April 2018 contain his opinions of which he reasonable held.
·Said the Applicant has multiple health conditions and the Centrelink certificates only allow you to write three medical conditions, but he has a lot more than what is mentioned on the certificates.
·Confirmed that he was aware that the Applicant had diabetes type II resulting in osteomyelitis and that his 3rd and 4th toes on his left foot were amputated in late March 2017.
·When asked if he had examined the Applicant’s mental state after that and if so how was it, he said: “[The Applicant] was quite depressed and he was not accepting that he had lost the toes and, in fact, he wanted to save the toes as much as he could”. He said the Applicant had delayed the amputation for some time believing that his toes could be saved and Dr Arora had given him some antibiotics which initially made a difference, but ultimately the toes had to be amputated.
·When asked if he examined the Applicant’s mental state between March 2017 and July 2017, he said: “I did see him in the presence and absence of Dr Arora together. When Dr Arora was not there, I would attend to him so I did have to, you know, talk to him and I did feel that he was depressed”.
·Said that he confirmed the diagnosis of depression based on symptoms of low energy, tired in May 2017. He said the other symptoms were that orally the Applicant was slow in talk, he was not very prompt in coming up and he was not positive, he was not cheerful and he was always concerned about his health.
·Said he did not recommend any further treatment.
On cross-examination, Dr Kaushal:
·Confirmed that he had not seen the Applicant at his current practice between 2012 and 27 December 2016.
·When asked if when a patient attends on him if he takes notes to record what occurred in the session, he said: “Generally I do. I take notes for the condition that he has come for. So, I’ve had a few times when we had to remove some skin lesions of him, but we don’t make notes of everything that is there on every time”.
·When asked if he would make notes to record any conditions of significance, he said he would.
·Confirmed he was aware that copies of his clinical notes had been provided to the Tribunal.
·Confirmed he saw the Applicant on 27 December 2016 to clean and dress his diabetic foot.
·Confirmed that on 18 April 2017, the Applicant attended an appointment with him to complete a Centrelink report. When taken through the details he had completed on the form he confirmed the conditions he had listed were hypertension, peripheral vascular disease, osteomyelitis left foot, 3rd and 4th toes amputated, diabetes mellitus and coronary heart disease.
·When asked if these conditions were affecting the Applicant the most at that point in time, he said they were, but it depends because there was not enough space, so he might have left one or two conditions out because there were enough reasons to grant a medical certificate for Centrelink.
·When asked to confirm that he had not included the Applicant’s depression in his clinical notes at that time either, he agreed that he had not as at that point of time he was mainly looking at the infection. He said the toes were of concern and that was an ongoing condition [the depression] and we did not report it every time.
·When asked to confirm that he had not listed the Applicant’s depression on his report dated 18 April 2017 or include it in his clinical notes, he agreed and said that the Applicant just came to see him for the Centrelink certificate.
·Confirmed that on 31 May 2017 he provided another Centrelink medical certificate for the Applicant in which he listed the second condition as depression with a date of onset being 2 January 2008 with the symptoms being low energy and tiredness.
·Confirmed that he understood that the Applicant was on Effexor at the time but he did not list it on the certificate.
·Said he did not organise any of the treatment for the Applicant’s depression.
·When asked about his letter dated 4 April 2018 and whether he wrote it, he said: “The initial letter and this letter were both seen by me. The doctor that was actually seeing [the Applicant]; he did talk to me and that letter was also checked by me and this letter was also done by me. In this one, I did make some changes in point 9 I suppose. They seem slightly different from that”.
·When asked if he generally adopted Dr Arora’s opinion from 22 March 2018, he said: “Yes, he did consult me when he was doing the letter, just to make sure that this is the kind of letter that would be appropriate because he hasn’t done too many of these”.
·When asked if he adopted that letter on 4 April 2018, he said: “Yes” he did.
·When asked if that opinion was based on any psychological assessment of the Applicant on that date, he said no, not on that date, it was done for just a reproduction of the facts.
Evidence of Dr Caniato
Having examined the Applicant on 31 October 2017, Dr Caniato, psychiatrist provided a report of the same date to Dr Rahman. Relevantly Dr Caniato provided: [57]
[57] Exhibit 3, T Documents, T56, pages 272-275, Medical Summary by Dr Caniato.
“CURRENT TREATMENT:
In regards to his treatment you really have done as much as can be done. There is little more that can be done for his cognitive decline and its likely there will be some steady worsening of his cognition and of his vascular problems.
…
MENTAL STATE EXAMINATION:
He is an elderly male of stated age. His mood is dysphoric and flat. Affect is restricted. He describes his mood as flat with some features of anxiety and there may be some reliving of experiences but no delusions.
[The Applicant] cognition indicated early on that significant cognitive decline especial in the areas of executive functionally and problem solving and visuospatial memory.
Short term memory remains intact.
IMPRESSION:
[The Applicant] has had long term problems with depression. He has multiple other physical problems and there has been a deterioration in his vascular health with a recent myocardial infarction, amputation of his toes and worsening of his cognition indicative of multi-infarct dementia.
Currently it is no longer safe for him to work, I guess he is well past the threshold to and I now recommend the disability support pension.
In regards to treatment I don't think there is much more that can be done.
DIAGNOSIS:
Axis I - Major Depressive Disorder
Post Traumatic Stress Disorder previous diagnosis
Axis II - NIL
Axis Ill - Multi-Infarct Dementia/Vascular Dementia/Decline,
Multiply heart attacks, Gout, Diabetes.
Axis IV - Social Isolation
Loss of Job
Axis V - GAF 50
MANAGEMENT PLAN:
BIOLOGICAL
I think his medications are appropriate I don't think there would be much value increasing his anti depressant medications. There would be significant risks in view of his multiply medical problems.
I leave the management of his diabetes in your hands.
PSYCHOLOGICAL
Help from a psychologist during this hard period may be of some value.
SOCIAL
He is very isolated.
I would recommend a MRI to document the severity of his cerebral atrophy and white matter lessons this may have some imprecations for prognosis but properly won’t change treatment for management”.
At the Hearing before this Tribunal, Dr Caniato gave evidence by telephone under affirmation. He:
·Confirmed his name, that he is a qualified doctor and psychiatrist holding a Bachelor of Medicine and Surgery and is a fellow of the Royal College of Psychiatrists.
·Confirmed he examined the Applicant on 31 October 2017 and provided a report of the same date to Dr Rahman. He said he provided a management plan for clinical purposes to Dr Rahman.
·Confirmed that the opinions contained in that report were his own and were reasonably held.
·When asked if an MRI of the brain assists with the making of a diagnosis of multi-infarct dementia, he said: “Yes”.
·When asked to review the report of Dr Spize provided in relation to the MRI of the brain performed on 5 October 2016 and briefly explain to the Tribunal what the information under the heading impression actually means and whether it, if at all, has any relevance to an indication of dementia, he said:
“Yes, atrophy means loss of brain tissue with reduction in volume. Means when you look at the MRI, the brain part of the grey matter is reduced due to loss of brain cells and the fluid area is bigger, that’s why there’s dilatation, that just means that the empty areas are bigger. (Indistinct) infarct just means that there are array of small little infarcts, little strokes, caused by blood vessel damage, iconic damage, and evidence of small vessel ischemia just means that there’s lots of evidence that there’s not enough blood flow and you see little white areas all around the ventricles. That’s essentially consistent with dementia caused by vascular insufficiency which means dementia due to damage to blood vessels which is in keeping with a history of blood vessel damage from his diabetes and his toe amputations. So, it’s consistent with the clinical picture”.
·When asked if he would suggest that in that point in time the MRI of the brain and the impression that was given indicates the existence of dementia at that time, he said: “I would, yes”.
·When referred back to October 2017 when he confirmed the diagnosis of dementia and asked whether dementia is a slow or sudden condition, he said: “It is slow. Multi-infarct dementia can have a step wise deterioration. Each time you can have large strokes. But in the absence of larger strokes, generally it’s a steady decline”.
·When asked if he would have expected the Applicant’s dementia condition would have been significantly different in July 2017 as compared to his clinical examination of him in October 2017, he said: “Well, I wouldn’t and of course I also have a second MRI on 1 November 2017 so I can even compare the brain changes. So, I can clinically compare but I can also compare the MRI results”.
·When asked if in his view it was likely that the level of impairment that he saw in the Applicant in October 2017 was present in July 2017, he said: “I think it’s more likely than not”.
·Was taken to the second page of his report where under the heading ‘mental state examination’ he wrote:
“[The Applicant’s] cognition indicated early that significant cognitive decline, especially in the areas of executive functionality and, problem solving and visual-spatial memory. Short term memory remains intact”.
·Based on that examination he was asked whether the following examples fitted with the Applicant’s level of cognition:
oWould you have considered the Applicant to occasionally forget to complete a regular task or sometimes misplace import items? He said: “I’d consider that slightly yes”.
oWhat about his attention and concentration? For example, would the Applicant have some difficulty concentrating on complex tasks for more than an hour or that he has some difficulty focusing on a task if there are other activities occurring nearby? He said: “I think that’s more likely than not, yes”.
oProblem solving: would the Applicant have difficulty solving complex problems that may involve multiple factors or abstract concepts? He said: “Yes, I would say he most definitely has problems in problem solving because that area I specifically tested. I think that [is a] major deficit”.
oMemory, would the Applicant be unable to remember routines, regular tasks and instructions? He said: “I think it’s more likely than not”.
oDifficulty with recalling events of the past few days? He said: “That would be very likely based on his mental state examination”.
oAn inability to concentrate on any task, even a task that interests the person for more than 10 minutes or is easily distracted from any task? He said: “I think that’s more likely than not”.
oProblem solving, would the Applicant be unable to solve routine day to day problems such as what to do if a household appliance breaks down and needs regular assistance and advice? He said: “Yes, problem solving is very likely to be impaired and that I’ve tested to problem solving I would say is almost certainly significantly impaired”.
·When asked if he agreed that the Applicant would have been unable to perform many visual-spatial functions such as reading maps, giving directions, including to his house or judging distance or depth, he said: “Look, that’s likely to be the case”.
·When advised that the Applicant was driving a taxi until February 2017 and asked if it is unusual for someone to be driving a taxi at that point in time and to have the level of impairment at a later time, he said: “Well, when it says places like Townsville and modern GPS’, you would imagine that it would be – that some functioning could be maintained. Certainly, you’d expect his function to be way below his peers and certainly at a concerning level. Being in a small country town like Townsville, you’d imagine he’d be able to continue for a longer period. I suspect even over the last 12 months of his driving that he wasn’t functioning at a particularly good level and certainly I wouldn’t imagine would have been safe to drive. I don’t think anyone, had they assessed him, would have in fact allowed him to have a commercial driver’s licence”.
·When asked whether there was any difference between his diagnosis’ of depression and PTSD, he said he understood that the PTSD was a pre-existing diagnosis, based on pre-existing stressors, so he accepted that diagnosis but did not explore the stressors in detail. He said he had accepted the PTSD diagnosis on face value. He said:
“The major depressive disorder is based on the presenting symptoms with the caveat that many, if not all, the symptoms of depression are equally caused by dementia. So, where someone has depressive symptoms but all a dementia, you could alternatively call it a mood disorder due to the general medical condition. So there might be some question of the exact terminology. In this case, it’s very hard to separate what is purely depression and what is in fact from his dementia. You know, that’s a very difficult question to answer definitively”.
·Said his understanding was that the Applicant was first diagnosed with depression in 2006 and it is unclear to him whether the Applicant went into full remission, when it re-emerged or whether it had even totally resolved. He said: “What I’d say, certainly in 2017 he had both symptoms of depression and dementia. I couldn’t comment exactly when the symptoms of depression re-emerged or began”.
·When asked if it is accepted that the Applicant had symptoms of low mood, poor sleep and reduced motivation in May 2017 would that indicate to him that depression was in existence at that point in time, he said: “Yes”.
On cross-examination Dr Caniato:
·Confirmed that he first assessed the Applicant on 31 October 2017 and that he had only received a copy of the 2016 MRI that morning, he had not previously been aware of it.
·Said he did not have the 2016 MRI available to him when he made his diagnosis in 2017 of dementia, he said: “No, I had my own MRI on 1 November [2017] but, in fact, [the Applicant] actually didn’t give me any of the history, he appeared to have no recollection of that. So, no I was not aware that there had been a previous MRI”.
·Confirmed that his diagnosis on 31 October 2017 was a provisional diagnosis which was then confirmed by the MRI of the brain in November 2017.
·When asked whether until it can be confirmed by an MRI, would he accept that the condition could not be considered fully diagnosed, he said: “Yes”. He confirmed that this is particularly so because the Applicant had depressive symptoms and a diagnosis of depression dating back from 2006 as well. He said that without an MRI he would have been reluctant to definitively say it was dementia, because it could be all caused by depression.
·When asked if he would expect that he could make recommendations for treatment for the Applicant’s dementia condition, he said: “Ultimately for vascular treatment would be shared between a neurologist, a vascular specialist and a psychiatrist. So, I would certainly make some psychiatric recommendations. But ultimately the natural history of a vascular dementia is for progressive decline. The role of treatment is only to try and reduce the rate of decline”.
·When asked if that treatment could reliably be expected to result in substantial improvement in functional capacity, he said: “Look I doubt it. Because dementia, by its definition, is a progressive disease. But, you know, there may be some occupational therapy and a few other things that would allow him to stay independent for a longer period. But I doubt that we would expect improvement”.
·Agreed that clinical management of major depressive disorder depends on a valid diagnosis.
·Confirmed that he received a referral from Dr Rahman which was two lines long, blood tests, and a little bit of a history. He confirmed he did not have clinical notes from the Applicant’s other treating practitioners, his diagnosis of the Applicant’s major depressive disorder was based on his assessment on 31 October 2017.
·When asked if in his report when he said that in regards to treatment he did not think there is much more than could be done if that was in reference to the Applicant’s dementia or major depressive disorder, he said, he probably meant both, but it does not say that, but his best interpretation of reading his own report is that he did not feel that much could be done for either.
·When asked what, his understanding was of the treatment under taken by the Applicant in the past was, he said:
“My understanding is that he’d had - I’m looking at my notes, ‘past psychiatric history’ there says that he was treated by a psychiatrist from 2006 to 2009. So, I felt that - the PTSD at the very least I didn’t feel anything could be done, that had been of long term. My notes also say that depression had been chronic but stable. So, my thoughts at the time was that the depression had been treated for a number of years but now the vascular - or the infarct dementia, was making it worse. So, that was my impression of what treatment he had received”.
·Confirmed he was aware of the Royal Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines for the treatment of major depressive disorder and that their recommendations are that there are a number of psychotherapies that have been demonstrated to be efficacious for the acute treatment of depression.
·When asked what psychotherapy treatment he would consider reasonable in the relation to the Applicant’s major depressive disorder, he said:
“Well, two things to keep in mind, it’s not acute depression with [the Applicant] and he also has dementia. So, the major treatment like cognitive behaviour therapy or psychotherapy would no longer be indicated. Certainly, some supportive therapy would still be considered appropriate but the truly aggressive psychotherapies require pretty reasonable memory and intact cognition so there’s no point trying to do those treatments because he simply doesn’t have any of the memory to be able to use them. So, I would say for him, the main [form] of treatment would be what we called supportive which is where we’re not really trying to make major changes, but we’re trying to just maintain functioning”.
·Confirmed that where a person is experiencing a major depressive disorder of greater severity which is running a chronic course, a patient would require the addition of antidepressant medication and psychotherapy.
·Confirmed that the introduction of psychological therapy by a qualified psychologist would be reasonable and may be of some value through the hard period.
·Confirmed that he did not have any knowledge at the time of examining the Applicant of him having any psychological intervention.
·When asked if it was reasonable that on 3 August 2017, a psychologist provided the Applicant with psycho-education, breathing and relaxation techniques, together with CBT, he said he would accept that was reasonable.
·Said he considered that the Applicant’s medications were appropriate and did not see the value in increasing his antidepressant medication. When asked why, he said:
“My feeling was - I’m just looking at my report - my feeling is that the symptoms were reasonably chronic and ingrained and there was a contribution to the vascular dementia. My feeling was that more aggressive pharmacotherapy had risks with and I did not feel, on the balance of probability, it was worthwhile in that patient”.
·Said he would not have recommended changing the Applicant’s medication however he would not have necessarily disagreed with it.
·Said he understands that the Applicant was able to drive a taxi and able to function despite his depression and PTSD. He said that if the Applicant was cleared for his commercial licence within six weeks after the amputation of his toes that on face value that would indicate that he was able to do so, however he would be interested in reviewing the nature of the assessment because it would be in significant contrast to his assessment of the Applicant.
·Confirmed that his assessment of the Applicant was only from October 2017.
·Confirmed his understanding was that the Applicant was living on his own, had limited social contact, and had a relationship breakup.
·When asked to confirm that this does not indicate that the Applicant needed at least once a day assistance from another person, he said:
“Look, I wouldn’t definitely say that. I don’t know what level he would need and keep in mind I’ve not done a home visit. Generally, I would have an occupational therapist. So, I couldn’t comment on his home situation but what I would say, it’s certainly common for elderly people who are really not functioning to still be stuck at home because there’s simply no services for them. So, just because someone needs certain support doesn’t mean they necessarily are getting them”.
·When asked that if a person is driving a taxi, if it was assumed that they would not need frequent, at least once a day, assistance from another person due to their cognitive condition, he said:
“Look, I would definitively comment and I’d say ultimately I’m a psychiatrist and not an occupational therapist. What I would say is I commonly see demented people who are driving who shouldn’t be and who are living by themselves and really should have more care and just aren’t receiving it. So, what I’d say is the fact that someone isn’t receiving care and is driving, to me doesn’t indicate that they do or don’t need care. It just indicates they’re not getting any. And the fact that they’re driving when I don’t think they should just indicates to me that they’re driving when they shouldn’t be. I don’t think it necessarily follows that I would conclude that he doesn’t have care needs”.
·When then asked: “But you couldn’t say, could you, that he [the Applicant] needed on account of his cognitive condition, at least once a day assistance from another person in July 2017?” He said: “No, look I would agree with that statement and in an ideal world, I would have an occupational therapist who would visit him and answer that question definitively. But, I agree, I have to assess - I have to make a judgment on first principles without actually being able to see how he’s functioning at home”.
·When asked if he would agree that the Applicant did not need supervision from another person in July 2017 because he cannot comment on how he was at that stage, he said: “Well look, I would say I can conclude he certainly wasn’t receiving frequent supervision. That, I think we can agree on. Whether he was needing it, my opinion would be based on his functioning that he probably should have had it”.
·When asked whether because he did not see the Applicant in July 2017 and did not have the clinical notes from his treating practitioners, he not could definitively say that he had severe difficulties at that time in at least memory, attention and concentration, problem solving and planning, rather his evidence had been more likely than not he said:
“Look, I think that’s a fair statement. I can only assess clinically his memory and then extrapolate how I think he’s functioning would be, but in an ideal world an occupational therapist would actually directly assess that functioning. So, it’s correct, I’m making assumptions indirectly based on my mental state examination. So, I would agree with that.
…. So I can test that in my office and extrapolate how he’s likely to function at home but ultimately, the ideal assessment is to actually test him in his home or to have information from someone who is in his home with him. So, I can make some reasonable estimations but I cannot obviously make direct assessments of those functionings”.
On re-examination by the Applicant, Dr Caniato:
·Confirmed that although the Applicant was not getting supervision this does not mean that he did not need it. His view was that the Applicant needed supervision based on his cognitive functioning.
·Confirmed that based on the very nature of the condition, dementia, that it was more likely than not that the difficulties the Applicant had when he examined him in October probably existed in July in the absence of any significant intervening event.
·Said that Effexor is a standard middle of the range antidepressant.
·Said that psychological treatment would in his opinion not change the Applicant’s functioning to a degree that he would be able to return to work, rather it would improve his quality of life.
·When asked if when he used the word ‘support therapy’ if that was really just support in the Applicant’s transition, he said:
“Well, psychological counselling is not always just for the purposes of getting people back to work. Sometimes it’s for dealing with grief, dealing with loss. You know, there are many reasons to see a psychologist even if we don’t believe the psychologist can return someone to work. That’s all I’m saying. It’s still good to see a psychologist even if there is no expectation or attempt or belief that that treatment could get someone back to work”.
When asked by the Tribunal why he was confident in diagnosing the Applicant with dementia in his report of 31 October 2017 despite having not seen the 2016 MRI or receiving the results of the MRI he had requested (which took place on 1 November 2017) he said it was because based on the Applicant’s neurocognitive testing and history he was pretty certain that he was going to find vascular dementia.
When asked by the Tribunal whether there were any significant changes between the 2016 and 2017 MRI’s, Dr Caniato said:
“Well, I can tell you there - keep in mind I have not seen the originals so I’ve only got the written [reports]. What I can tell you is that the current MRI says, this is the exact wording: ‘generalised global evolutional changes including the supra and infra tentorial compartments.’ So, I’m trying to compare that to the MRI in 2016. They both show quite a lot of evolutional change. They both show some foci or little (indistinct) but measuring them quantitatively, like saying how much difference there is, is impossible to do without seeing both of the MRIs side by side. As best as I could tell, if I didn’t know otherwise, I’d say that both of the reports are very similar. You know, I couldn’t say that one is worse than the other. If I didn’t know which was dated which I couldn’t, for instance, tell you which was the more recent MRI. That’s the best way I could tell you what I think of the two reports”.
Dr Caniato confirmed that his view is that it was more likely than not that the Applicant’s dementia was present from at least the 2016 MRI date, however he did not have cogitative testing from 2016. He said it is plausible that the Applicant could have the same MRI and it not show the full changes, but that would seem very unlikely. He said: “I think almost certainly he’s [the Applicant] had these problems at least since, you know, since mid-2017, if not earlier”.
Dr Caniato told the Tribunal that there is no treatment for dementia. He said:
“It’s supportive, it’s ensuring that you maximise social supports, you manage dangerousness, you imagine driving would be the, you know, the biggest risk factor. For vascular dementia, you can ensure that blood pressure and cholesterol level, the risk factors, are managed. But essentially it’s about slowing the decline and ensuring that risk to both the person and community is minimised”.
Dr Caniato confirmed that the depression could have been masking the Applicant’s dementia, he said that the diagnostic difficulty is when people have had long-term depression is that they do not necessarily look for dementia, the two can mask each other.
Evidence of Mr Weightman
On 3 August 2017, Mr Weightman, psychologist provided a report to Dr Rahman after his first consultation with the Applicant on the same day. Mr Weightman provided:[58]
“Overview
[The Applicant] attended the first Session we quickly formed a good therapeutic relationship. [The Applicant] was administered a Depression Anxiety Stress Scale (Dass21) which indicated a Depression score of 19 (Extremely Severe), Anxiety score of 15 (Extremely Severe) and a Stress score of 19 (Extremely Severe). [The Applicants] PTSD checklist and measures the 17 symptoms of Post Traumatic Stress Disorder, (PTSD). The scores on the instrument range between 17 & 85, with a score of 50 being a good predictor for a diagnosis of PTSD. The PCL-C revealed that [the Applicant] attained a score of 77, identifying that he is currently experiencing a number of disruptive symptoms consistent with having experienced previous Trauma.
I will continue to provide Psycho Education, breathing and relaxation techniques together with Cognitive behavioural therapy (CBT). These interventions will be ongoing until a desired biological, psychological and environmental level of functionality has been achieved. If you require further information please do not hesitate to contact me on the above mentioned contact details”.
[58] Exhibit 3, T Documents, T49, page 237, Summary by Tony Weightman.
On 12 October 2018, Mr Weightman provided a report to Legal Aid Queensland for the purposes of the Applicant’s DSP claim. In this report Mr Weightman reproduced his test outcomes outlined above and provided:[59]
“In my opinion many of the current symptoms have resulted from the breakdown of several significant personal relationships and ongoing severe medical conditions currently suffered by [the Applicant]. Having engaged in only four hourly therapeutic sessions with [the Applicant], no significant historical therapeutic investigation has yet been engaged in, with all our focus at this stage directed at sustaining his continued physical, mental immediate survival. Without this historical trauma related investigation the provisional Diagnosis of Complex PTSD remains undetermined and therefore not specified. [The Applicant] however has already been diagnosed with an Extreme Severe Anxiety Disorder which as identified is generalised in nature. At this time I am confident with a diagnosis pf severe Generalised Anxiety Disorder (GAD) accompanied by Major Depression. In the diagnosis of both these mental health disorders the diagnosis for both is identified as Chronic, thus constant and incurable in nature. This fact highlights the long term (Life Long) psychological intervention approach that [the Applicant] will be required to access if any positive quality of life is a therapeutic goal”.
[59] Exhibit 16, Report of Mr Tony Weightman dated 12 October 2018.
In response to a series of question, in his report Mr Weightman provided opinion that:[60]
·Talk therapy would not have given the Applicant significant improvement within 12 months from 2 August 2017.
·The Applicant’s psychological conditions were neither episodic nor fluctuating.
·Having only seen the Applicant on four occasions he was unable to assist with any personal assessment in relation to his self-care and independent living, social/recreational activities and travel, interpersonal relationships.
·The very nature of the Applicant’s extremely high levels of anxiety is an indicator of “his poor concentration, poor memory and inability to focus on task completion”. The Applicant often forgot mid-sentence the direction of his answers or indeed the point of the questions asked.
·During the four sessions with the Applicant it was overtly identifiable that he was struggling to maintain most of his cognitive abilities, apart from many other factors including planning and decision making.
[60] Exhibit 16, Report of Mr Tony Weightman dated 12 October 2018.
At the Hearing before this Tribunal, Mr Weightman gave evidence by telephone under affirmation. He:
·Confirmed his name and qualifications as being a Bachelor of Psychology and that he was a psychologist not a clinical psychologist.
·Confirmed he saw the Applicant for psychological purposes on 4 occasions being 2 August, 3 August, 11 September and 23 October 2017.
·Provided details of the history provided to him by the Applicant in their first appointment. He said that the Applicant’s depression and PTSD probably started as a result of a severe traffic accident when the Applicant was 18 years old.
·Said he gave the Applicant two tests. A DASS-21 which is a depression, anxiety stress scale and a PCLC which is the PTSD checklist and the results of these tests this allowed him to identify that the Applicant’s depression and PTSD were extremely severe.
·Gave evidence in relation to the effects of PTSD and the need to feel ‘in control of your life’. He said that the Applicant’s health concerns and feelings of losing control over whether he would need to get toes amputated together with marital and property issues were impacting on the Applicant’s anxiety. He said he believed the symptoms had increased from 2016 and referred to the Applicant having been admitted into hospital in September 2016 where the principal diagnosis was panic attack with the Applicant’s chest pain being examined and a referral to a psychologist was recommended.
·Said that the Applicant was going through an extreme period having had heart attacks, amputation of his toes and possibly dealing with homelessness.
·Said that in his opinion his diagnosis was without a doubt likely to have been prevalent at least from July 2017. He said: “[the Applicant] was just going to continue to get worse, because he was actually physically getting worse, therefore, his anxiety levels were going to continue to get worse and his depression levels, because he couldn’t get any better, were actually getting worse as well. That sense of helplessness and hopelessness was actually getting more severe”.
·He agreed that as a psychologist he would have more time to go into psychological symptoms than a general practitioner would.
·When asked whether the outcome of his four appointments with the Applicant result in him being likely to return to some form of employment within two years, he said: “No”.
·When asked when he first examined the Applicant and he first provided his diagnosis’s if he was of the view that it was likely that this treatment would have improved him, he said: “No, not at all. What you’ve got to understand is the situation; there was going to be no satisfactory outcome. We were going to lose on this one”.
·
Confirmed that he prepared a report for Legal Aid dated 12 October 2018 and that it contained opinions he reasonably held.
On cross-examination, Mr Weightman:
·Confirmed that he first received the referral from Dr Rahman on 31 July 2017 which was a two-page document. He said he did not receive any other clinical notes or any other information beyond what is in the referral.
·Confirmed that his report dated 3 August 2017 was based on his clinical interview and the tests he administered and that he was attempting to continue to provide the Applicant with psychoeducation, breathing and relaxing techniques together with CBT at that stage.
·Confirmed that he saw the Applicant four times between 3 August 2017 and 23 October 2017 and not again until September 2019.
·Confirmed that in his report of 12 October 2018 that he was confident with the diagnosis of severe generalised anxiety disorder accompanied by depression.
·When asked about when he wrote in that report: ‘Without this historical trauma related investigation the provisional diagnosis of complex PTSD remains undetermined and therefore not specified’, he said: “Undetermined by me. I put that to the doctor”.
·When asked if he agreed that a diagnosis of dementia is likely to affect someone’s memory and concentration, he said most certainly, there are various stages of dementia that are debilitating.
·Said that he could not give a determination on how the Applicant was in 2016 as he did not see him until 2017. When put to him that he cannot give an evaluation of how the Applicant was between April and July 2017 he said obviously however he looked at previous history.
·Said he was aware that the Applicant continued to work as a taxi driver from 2016, he said that: “[the Applicant has] got to make a living. I mean we all have to push through these things, it’s called suck it up”.
CONTENTIONS
Contentions of the Applicant
The Applicant relying on the decision in May and Secretary Department of Social Services (Social services second review) [2016] AATA 1061 contends that the Applicant’s depression has been diagnosed (with approval from a psychiatrist and psychologist – rather than a clinical psychologist) on multiple occasions before and during the Relevant Period. Particularly referring to:[61]
(a)On 24 June 2013, Dr Bangoy, General Practitioner, confirmed the Applicant to be suffering from “Depression” since 2006, the diagnosis of which was confirmed by Dr Michael Stone, Psychiatrist.
(b)On 9 July 2013, a Job Capacity Assessor confirmed with Corina Bowman, Registered Psychologist, that the Applicant’s depression condition was fully, diagnosed, treated and stabilised.
(c)Dr Kaushal, General Practitioner, provided a medical certificate dated 31 May 2017, confirming a diagnosis of depression.
(d)Dr Arora, General Practitioner, provided a medical certificate dated 7 June 2017, confirming a diagnosis of depression.
[61] Applicant’s outline of submissions, dated 10 September 2019, pages 5-7, paragraphs 10-15.
The Applicant contends that there is no reason to dispute what is written in this documentation. In particular, Dr Bangoy confirmed that the diagnosis was given by
Dr Stone, psychiatrist.[62]
[62] Applicant’s outline of submissions, dated 10 September 2019, page 7, paragraph 16.
The Applicant submits that in any event, the diagnosis of major depression was subsequently supported by Mr Weightman, psychologist when he examined the Applicant on 2 August 2017, and Dr Caniato, psychiatrist when he examined the Applicant on
31 October 2017. The Applicant contends that there is no requirement for the confirmation of the diagnosis given by the general practitioners during the Relevant Period to also be given during the Relevant Period.[63]
[63] Applicant’s outline of submissions, dated 10 September 2019, page 7, paragraph 17.
In relation to the Applicant’s PTSD and dementia conditions, the Applicant accepts that these conditions were given a diagnosis, for the first time, outside the Relevant Period. For the PTSD condition the diagnosis was made by Mr Weightman on
2 August 2017 and Dr Caniato on 28 October 2017 and the dementia condition by
Dr Caniato on 28 October 2017.[64]
[64] Applicant’s outline of submissions, dated 10 September 2019, page 7, paragraph 18.
The Applicant submits that a diagnosis does not need to be made during the Relevant Period but rather diagnosis of the conditions that the Applicant was suffering during the Relevant Period can be made retrospectively.[65] The Applicant provided the following contentions on this point:[66]
[65] Applicant’s outline of submissions, dated 10 September 2019, pages 7-8, paragraph 19.
[66] Applicant’s outline of submissions, dated 10 September 2019, pages 8-9, paragraphs 20-26.
“20. The need to qualify for the pension during the relevant period is sheeted home to the requirements of section 94 only, not the Impairment Tables. Pursuant to section 26 of the Act, the tables are limited to the “assessment of work-related impairment for disability support pension”. The Tables cannot import further limitations on qualifying for the pension.
21. Pursuant to the Impairment Tables, the need for a diagnosis is required to assign the claimed condition an impairment rating. This is an evidentiary requirement, and there is no reason why that diagnosis cannot be provided outside the relevant period, so long as it is in relation to the same condition that existed during the relevant period.
22. The Impairment Tables speak nothing about requiring a diagnosis to be actually given during the relevant period. Even if it did, such a limitation would be impermissible, as it would be an instruction that goes beyond the assignment of a work related impairment.
23. The case law also supports the approach submitted by the Applicant. In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, Gyles J held:
[1] It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
24. By providing that qualification, His Honour was clearly contemplating a situation whereby an Applicant could produce later evidence that supported the state of the Applicant’s condition during the relevant period.
25. Further support for that proposition is found in Daley v Secretary, Department of Social Services [2015] FCA 1155, where Katzmann J held:
[35] The difficulty for Mr Daley was that there was no evidence before the Tribunal that a diagnosis of his condition had been made by a psychiatrist or a clinical psychologist before or during the claim period (or at all, for that matter). Mr Daley claimed to have seen a psychiatrist three times in 2010 but presented no evidence from the psychiatrist. He did see a clinical psychologist, Mr Tsomis, but not until November 2014, some two months after the claim period. Even so, he could have provided a diagnosis and an opinion on Mr Daley’s impairment during the claim period based on the history he had received. But the letters submitted to the Tribunal from Mr Tsomis contained neither.
26. Finally, this issue was directly considered by Deputy President Forgive in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558. She stated, relevantly:
[88] It matters not, in my view, that the diagnosis came after 19 December 2011 provided Mrs Eid was suffering from the condition at that date and provided it could be said, on all of the evidence, to have been fully treated and fully stabilised as at that date. In everyday English usage, a “diagnosis” is “... the process whereby a disease or disorder is provisionally identified on the basis of its symptoms and the patient’s medical history. ..”. In medical usage, its meaning is little different: “... 1. The art of the act of determining the nature of a patient’s disease. 2. A conclusion reached in the identification of a patient’s disease”. There is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed. There is nothing in Schedule 1B or in the Impairment Tables that suggests that either. All that they do is require that the condition be fully diagnosed. A person can suffer from a condition on a particular date even if it is yet to be identified and a name given to it as a result of a subsequent process of diagnosis that has regard to, among other matters, the symptoms that the person suffered on that date and his or her medical history at that time. Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period, that meets the description of being a condition that is fully diagnosed”.
The Respondent outlined their understanding of the evidence provided by Dr Arora and contended that based on this evidence there is no corroborating evidence which supports a finding that the Applicant’s major depressive disorder condition alone resulted in a severe functional impact on activities involving mental health function. The Respondent provided that this submission is made where the evidence from the treating practitioners was that it is difficult to separate the resulting impairments and where Dr Arora gave an opinion in relation to all of the Applicant’s medical conditions. This submission is supported by the lack of any corroborating evidence of the Applicant’s depression during the Relevant Period within the treating practitioner’s clinical notes and the factual history of the present matter.[86]
[86] Secretary’s outline of submissions, dated 8 October 2019, pages 8-10, paragraphs 2.41-2.42.
The Respondent contends that the Applicant’s PTSD was not fully diagnosed, fully treated or fully stabilised during the Relevant Period on the basis that:[87]
(a)There is no corroborating evidence of the Applicant’s PTSD condition or diagnosis made by a psychiatrist or clinical psychologist until after the Relevant Period. This occurred after Mr Weightman’s assessment of the Applicant after the Relevant Period and was endorsed by Dr Caniato as a pre-existing condition.
(b)No treatment or rehabilitation had occurred in relation to the Applicant’s PTSD condition and Mr Weightman recommended continued psycho-education, breathing and relaxation techniques together with cognitive behavioural therapy fro am at least 3 August 2017.
(c)There is no corroborating evidence that the Applicant’s PTSD resulted in a severe functional impact on activities involving mental health function.
[87] Secretary’s outline of submissions, dated 8 October 2019, page 10, paragraphs 2.43-2.47.
The Respondent contends that the Applicant’s multi-infarct dementia was not fully diagnosed, fully treated or fully stabilised during the Relevant Period on the basis that:[88]
[88] Secretary’s outline of submissions, dated 8 October 2019, pages 10-12, paragraphs 2.48-2.59.
(a)With respect to diagnosis, although there was an MRI brain scan available to treating practitioners from 5 October 2016, this was in the context of ‘headaches with vomiting in the morning. Family history of cerebral tumour’. No further symptoms or corroborating evidence of the Applicant’s dementia was recorded within the clinical notes nor were any further referrals made to assess any cognitive decline.
(b)
Although Dr Caniato gave evidence that it was “more likely than not” that the dementia was present from at least the date of the MRI scan taken in 2016,
Dr Caniato noted that there was no cognitive testing from 2016. A clear diagnosis is also complicated by Dr Caniato’s evidence that there is diagnostic difficulty with dementia patients, who also have long term depression, in that the depression could mask the dementia symptoms.
(c)
It was not until the Applicant was assessed by Dr Caniato on 31 October 2017 that he was able to make a provisional diagnosis of the Applicant’s dementia.
Dr Caniato’s diagnosis was subsequently confirmed by an MRI that he requested in November 2017. Dr Caniato did not have available to him a copy of the MRI scan from 2016 at that time.
(d)The Applicant’s multi-infarct dementia condition was not fully diagnosed until after the Relevant Period.
(e)Although Dr Caniato’s evidence is accepted that there is no treatment for dementia and treatment is mostly supportive to manage dangerous situations, that while hindsight would suggest that treatment would not have resulted in improvement for the Applicant, there was no known diagnosis or assessment that would have allowed any of the Applicant’s treating practitioners during the Relevant Period to consider the likely effect of that treatment and provide an opinion on whether the condition was fully stabilised.
(f)The matter of Dean and Military Rehabilitation and Compensation Commission can be distinguished as it does not address the requirements of Table 5 of the Impairment Tables and the facts of the matter are substantially different.
(g)The Tribunal in Dean considered ‘need’ as meaning ‘want exists’ or can be a ‘call for some level of supervision and direction’. Factually, none of the Applicant’s treating practitioners recommended that the Applicant be provided assistance and supervision due to his dementia condition. Dr Caniato’s opinion that the want existed is purely speculative and uses hindsight to hypothesise what may have been the case during the Relevant Period in relation to his dementia condition. The Respondent submits that this hypothesis contradicts the factual circumstances of the level of impairment that may have resulted from the Applicant’s dementia condition during the Relevant Period.
(h)Dr Caniato’s evidence that it was “more likely than not” that the Applicant needed frequent assistance and supervision and would have had severe difficulties with memory, attention and concentration, problem solving and visuo-spatial function is not supported by the balance of the corroborating evidence or the facts of the present matter. Relying on:
(i)The Applicant lived by himself during the qualification period and the Applicant was only provided domiciliary care due to his left toe amputation and not his major depression. Dr Arora’s evidence was that he was provided domiciliary care because he was unable to drive at the time because of his physical conditions.
(ii)
There is no corroborating evidence, including within the clinical notes, that the Applicant had severe difficulties with memory during the qualification period. The first mention of the Applicant’s ‘poor memory’ was made by
Mr Weightman and with respect of the Applicant’s PTSD symptoms.
(iii)
There is no corroborating evidence that the Applicant had severe difficulties with attention and concentration during the qualification period. Dr Arora agreed that he did not record any issues with concentration in his notes.
Dr Arora also accepted that the Applicant would have been able to concentrate for more than 10 minutes within the qualification period, particularly with driving.
(iv)There is no corroborating evidence that the Applicant had severe difficulties with problem solving during the qualification period. Factually, the Applicant was able to complete general household activities such as banking, home maintenance and food preparation beyond the qualification period. There is no evidence that the Applicant needed regular assistance and advice during the qualification period with any problem solving.
(v)There is no corroborating evidence that the Applicant had severe difficulties with visuo-spatial functions during the qualification period. Dr Caniato’s evidence was that it was only ‘likely’ that the Applicant would be unable to perform many visuo-spatial functions, such as reading maps, giving directions. However, the Applicant was self-employed as taxi driver up until February 2017.
(i)Dr Caniato’s understanding of the Applicant’s functional impairments is simply not supported by the contemporaneous and objective evidence of the Applicant’s abilities leading up to and during the Relevant Period.
The Respondent contends that the Applicant’s permanent conditions do not prevent him from undertaking work of at least 15 hours per week within 2 years or to undertake a training activity that would equip him to work 15 hours per week within 2 years relying on the fact that the Applicant was engaged as a taxi driver despite the chronicity of his depression condition and the views formed by the Job Capacity Assessor.[89]
[89] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 19-21, paragraphs 73-82; Secretary’s outline of submissions, dated 8 October 2019, pages 12-13, paragraph 2.60-2.66.
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
There is no dispute in this matter as to whether the Applicant in fact suffers from major depressive disorder, PTSD and dementia. Rather the first issue to be determined by the Tribunal is whether these conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period.
Both written and oral evidence was provided to the Tribunal from the Applicant’s treating medical practitioners, all of which agreed that there is a significant overlay of the Applicant’s depressive disorder, PTSD and dementia conditions and the subsequent functional impacts caused. There is no evidence before the Tribunal that makes it clear which particular condition caused which particular functional impairment.
With the benefit of the opportunity to provide written submissions the parties have as set out above made comprehensive submissions in relation to their perspective views on the Applicant’s eligibility to receive the DSP.
Starting with the point of diagnosis of mental health conditions and the requirement of Table 5 of the Impairment Tables that “the diagnosis of the condition must 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)”.[90]
[90] Table 5 of the Impairment Tables in the Determination.
The Applicant made submissions that his depression condition was diagnosed on multiple occasions with approval by a psychiatrist and psychologist. The Applicant also sought to rely on the 2013 diagnosis by Dr Bangoy, general practitioner which indicates a diagnosis of depression was made in 2006 by Dr Stone, psychiatrist.
The Respondent made submissions that the correct approach to the diagnosis of a mental health condition required diagnosis by a psychiatrist or otherwise with evidence from a clinical psychologist.
In this respect the Tribunal agrees that the view expressed in JYHX and Secretary, Department of Employment and Workplace Relations should be preferred to that provided in May and Secretary, Department of Social Services (Social services second review) and accepts the submissions made by the Respondent. As such, it is this Tribunal’s view that a diagnosis of a mental health condition needs to be made by a psychiatrist or otherwise be confirmed with evidence from a clinical psychologist.
In relation to the Applicant’s depression condition outside of the form completed by
Dr Bangoy’s, there is no evidence of Dr Stone’s diagnosis nor is there any evidence of treatment that occurred in, before or after 2006, outside of medication up until after the Relevant Period. The evidence before the Tribunal also suggested that it was unclear whether the Applicant’s depression condition had ever resolved. The Tribunal is therefore not persuaded that a diagnosis of depression was made by an appropriately qualified medical practitioner during the Relevant Period.
The evidence before the Tribunal establishes that the Applicant’s depression condition was diagnosed by Dr Kaushal and Dr Arora during the Relevant Period and was confirmed by Mr Weightman and Dr Caniato after the Relevant Period.
The Applicant contended that there is no requirement for the confirmation of the Applicant’s depression diagnosis given by the general practitioners during the Relevant Period to also be given during the Relevant Period.
The Applicant equally applied his reasoning in this regard to the diagnosis of his PTSD and dementia conditions of which were made outside of the Relevant Period.
The Tribunal is of the view that a diagnosis or evidence provided outside of the Relevant Period can be taken into account when assessing a claim for DSP. The limitation however is that such a diagnosis and other opinion and/or evidence in relation to functional impairment must be made in relation to the person’s medical position during the Relevant Period. This view is consistent with the previous Tribunal decisions referred to by the parties in their contentions.
The Tribunal accepts the contentions of the Respondent that in order to make a diagnosis after the Relevant Period that a condition existed during the Relevant Period, regard must be had to the Applicant’s medical history. In this case neither Mr Weightman or Dr Caniato were provided with medical history in relation to the Applicant’s depression outside of that which he self-reported. Further Dr Caniato’s evidence was that it was likely that the Applicant’s depression was also present during the Relevant Period, this is by no way definitive especially without reference to corroborating medical history.
It is noted that the corroborating evidence in relation to the Applicant’s depression condition and any resulting functional impairment during the Relevant Period is limited. While the Tribunal accepts that general practitioners are not able to document every condition at each patient visit it is reasonable and consistent with the evidence provided by Dr Kaushal and Dr Arora that matters of significance are recorded. The evidence in this matter suggests that the main concern of the Applicant in the lead up to and during the Relevant Period for which he was seeking treatment related to his chronic osteomyelitis condition resulting in the amputation of his 3rd and 4th left toes.
As such the Tribunal is satisfied that the Applicant’s depression condition was not fully diagnosed during the Relevant Period but that the diagnosis was made after the Relevant Period. As such the Applicant’s depression condition, cannot be considered permanent for the purpose of applying the Impairment Tables.
It is not in contention that the Applicant’s PTSD condition was not diagnosed until after the Relevant Period by Mr Weightman and Dr Caniato. The evidence provided by
Mr Weightman and Dr Caniato in relation to diagnosis of the Applicant’s PTSD is difficult.
Mr Weightman in his written and oral evidence shifts between making a definitive PTSD diagnosis to making a preliminary diagnosis of which he referred back to the Applicant’s general practitioner. When asked about the statement in his report “without this historical trauma related investigation the provisional diagnosis of complex PTSD remains undetermined and therefore not specified” his evidence was that the PTSD was undetermined by him and that he put it to the doctor.
Further Dr Caniato’s evidence was that he accepted a historical diagnosis of PTSD and did not explore the stressors causing this condition in detail, rather he accepted the PTSD diagnosis on face value.
Both Mr Weightman and Dr Caniato provided opinion that they considered the Applicant’s PTSD was likely to be present during the Relevant Period. Outside of the reports of Mr Weightman there is no corroborating evidence before the Tribunal in relation to the Applicant’s PTSD condition.
Based on this evidence the Tribunal does not consider that the Applicant’s PTSD was fully diagnosed during the Relevant Period and as such cannot be considered permanent for the purpose of applying the Impairment Tables.
It is not in contention that the Applicant’s dementia condition was not diagnosed until after the Relevant Period by Dr Caniato. Based on the MRI’s taken of the Applicant’s brain in October 2016 and November 2017, Dr Caniato in his report of 31 October 2017 and confirmed in his oral evidence to this Tribunal diagnosed the Applicant with multi-infarct dementia.
The Applicant contended that the Tribunal should accept the evidence of Dr Caniato that it was likely that the Applicant’s dementia condition was in existence during the Relevant Period based on the similarity of the two MRI reports.
In contrast, the Respondent contended that:
(a)With respect to diagnosis, although there was an MRI brain scan available to treating practitioners from 5 October 2016, this was in the context of ‘headaches with vomiting in the morning. Family history of cerebral tumour’. No further symptoms or corroborating evidence of the Applicant’s dementia was recorded within the clinical notes nor were any further referrals made to assess any cognitive decline.
(b)
Although Dr Caniato gave evidence that it was “more likely than not’ that the dementia was present from at least the date of the MRI scan taken in 2016,
Dr Caniato noted that there was no cognitive testing from 2016. A clear diagnosis is also complicated by Dr Caniato’s evidence that there is diagnostic difficulty with dementia patients, who also have long term depression, in that the depression could mask the dementia symptoms.
(c)
It was not until the Applicant was assessed by Dr Caniato on 31 October 2017 that he was able to make a provisional diagnosis of the Applicant’s dementia.
Dr Caniato’s diagnosis was subsequently confirmed by an MRI that he requested in November 2017. Dr Caniato did not have available to him a copy of the MRI scan from 2016 at the time.
(d)The Applicant’s multi-infarct dementia condition was not fully diagnosed until after the Relevant Period.
The Tribunal finds the contentions of the Respondent to be persuasive when considered in relation to Dr Caniato’s evidence as to whether there any significant changes between the 2016 and 2017 MRI’s. Dr Caniato made reference to not having the actual MRI but only the written report so he is only able to compare the reports. On that basis Dr Caniato said the scans were similar but saying how much different there is, is impossible to do without seeing the MRI’s side by side.
Further as set out above Dr Caniato confirmed that his view is that it was more likely than not that the Applicant’s dementia was present from at least the 2016 MRI date, however, he did not have cogitative testing from 2016. He said it is plausible that the Applicant could have the same MRI and it not show the full changes, but that would seem very unlikely. He said: “I think almost certainly he’s [the Applicant] had these problems at least since, you know, since mid-2017, if not earlier”.
Based on the evidence provided by Dr Caniato the Tribunal is not satisfied that the Applicant’s dementia condition can be considered fully diagnosed during the Relevant Period, rather the condition was diagnosed after Dr Caniato’s examination of the Applicant and further reviews of the MRI’s. As such the Applicant’s dementia condition, cannot be considered permanent for the purpose of applying the Impairment Tables.
It is noted that even had the Tribunal been satisfied that the any one of the Applicant’s depression, PTSD or dementia conditions were permanent for the purposes of applying the Impairment Tables the evidence before the Tribunal from the Applicant’s treating practitioners was clear that it would be very difficult to separate the impairments from these conditions, rather they all overlay. The evidence was clear that this is particularly the case in relation to long standing depression and dementia. To that end the Applicant did not provide any evidence that separated the functional impairment resulting from these conditions. As such even in applying the principles set out in the Pignat and Secretary, Department of Social Services (Social services second review) it would be impossible in this instance to determine what degree of contribution of impairment the different conditions made.
Further based on the evidence before it, the Tribunal is not satisfied that if the Applicant’s depression, PTSD and dementia conditions could be assigned an impairment rating under either or both Table 5 and Table 7 of the Impairment Tables that the evidence supports a 20 point rating on either Table. To this end the evidence of Ms Wickman which is supported by Dr Arora was that at June 2018 the Applicant had significant functional capacity impairment which has increased in severity within the last six months and that he was likely to continue to decline both physically and mentally in the future. Further
Ms Wickman’s opinion was that at June 2018, the Applicant may soon require assistance with general household activities such as banking, home maintenance and food preparation. This evidence together with the absent of any contrary evidence indicates that up until that point, being well after the Relevant Period such assistance was not required. The Tribunal prefers the contentions of the Respondent in relation to whether it could be established that during the Relevant Period the Applicant needed frequently (at least once a day) assistance and supervision, particularly in the absence of any such referral or recommendation from the Applicant’s treating general practitioners.
The Tribunal accepts that the Applicant does have depression, PTSD and dementia conditions however based on the evidence before it finds that these conditions were not fully diagnosed during the Relevant Period.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s other conditions (being hernia, neck, left wrist, shoulder and numerous other identified conditions) could not be considered permanent during the Relevant Period for the purposes of applying the Impairment Tables.
The Tribunal finds that the Applicant’s chronic osteomyelitis condition resulting in the amputation of the 3rd and 4th left toes was permanent during the Relevant Period and could be assigned 5 impairment points under Table 3 of the Impairment Tables.
The Tribunal finds that the Applicant’s depression, PTSD, dementia conditions were not permanent during the Relevant Period and therefore could not be assigned an Impairment Rating under the Impairment Tables.
The Tribunal finds that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
...........................[Sgd].......................................
Associate
Dated: 29 January 2020
Date of hearing: 3 September 2019 Date final submissions received: 22 October 2019 Counsel for the Applicant: Mr P Nolan Advocate for the Applicant: Ms C Uhr Solicitors for the Applicant: Legal Aid Queensland Advocate for the Respondent: Ms J Vetter Solicitors for the Respondent: Sparke Helmore
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