Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 606
•17 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 606
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5077
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM SWANSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date17 August 2009
PlaceSydney (heard in Newcastle)
Decision The decision of the Social Security Appeals Tribunal dated 7 October 2008 is affirmed. ......................[sgd]........................
Senior Member
Ms N Isenberg
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether conditions fully investigated, documented, diagnosed, stabilised and permanent - whether Applicant had an impairment rating of 20 points or more under the impairment tables – held nil points - decision affirmed
Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 94, Schedule 1B
Social Security (Administration) Act 1999, Schedule 2
Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
REASONS FOR DECISION
4 August 2009 Ms N Isenberg, Senior Member 1. Mr William Swanson’s claim for disability support pension (DSP), made on 19 December 2008, was rejected by Centrelink. He unsuccessfuly sought review by an Authorised Review Officer (ARO) on 16 July 2008 and by the Social Security Appeals Tribunal (SSAT) on 7 October 2008. He now seeks review by this Tribunal.
2. Centrelink, on behalf of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) did not consider that Mr Swanson’s various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act).
3. The criteria for DSP are set out in section 94 of the Act and are, relevantly, as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
4. Clauses 4 and 5 of the Introduction to the Impairment Tables in Schedule 1B of the Act (the Impairment Tables) provide:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
ISSUE BEFORE THE TRIBUNAL
5. Was Mr Swanson qualified to receive DSP as at the date of his claim, 19 December 2007, and thirteen weeks from that date?
6. This depends upon whether:
·Mr Swanson had a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables; and
·If so, whether he has a continuing inability to work because of the impairment?
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
7. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Swanson was entitled to the DSP by 19 March 2008.
8. In Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253, Gyles J confirmed the strict window of time that the decision-maker is looking at in such cases:
[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, ... 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. ...
EVIDENCE
9. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), the following further documents were tendered by Mr Swanson:
(a)A medical report prepared by Dr George, Mr Swanson’s general practitioner, on 16 April 2009;
(b)Medical certificates from Dr George dated 8 December 2008, 13 March 2009 and 16 June 2009; and
(c)A mental health care plan completed by Dr George dated 11 June 2009.
10. I asked Mr Swanson to specifically comment on his conditions as at the date of his application and in the 13 weeks thereafter.
CONSIDERATION
Did Mr Swanson, by 19 March 2008, have a physical, intellectual or psychiatric impairment of 20 points or more?
11. In his claim for DSP dated 19 December 2007, Mr Swanson listed the following medical conditions or symptoms: anxiety, hearing loss, varicose veins, stress, disorientation, nervous disorder, feeling tired and inability to concentrate. Mr Swanson’s application was supported by a treating doctor’s report (TDR) by his GP, Dr George, who listed Mr Swanson’s conditions as “anxiety state” and “NIDDM” (non-insulin dependent diabetes mellitus).
12. A job capacity assessment was previously conducted on 21 September 2007 in which alcohol dependence and a kidney disorder were also identified.
13. Another job capacity assessment was conducted on 28 December 2007 in which other conditions were identified: varicose veins, and a condition affecting the right hand.
14. Each condition was considered in turn.
Diabetes Mellitus
15. The Secretary conceded that Mr Swanson suffered from diabetes mellitus, and that the condition was fully documented, diagnosed and treated and stablised, permanent, and was eligible for an impairment rating. I accept this is so.
16. In the treating doctors report (TDR) accompanying the claim, Dr George noted that diagnosis of the condition had been confirmed two years prior to claim. He wrote that Mr Swanson was treated with medication and that he was compliant with the treatment and that Mr Swanson’s symptoms consisted of tiredness.
17. In evidence at the SSAT, Mr Swanson could not identify any particular effect on his functioning arising from diabetes.
18. Mr Swanson told me that he thought his diabetes mellitus had been diagnosed about 3 years ago, at which time he was put on medication. He said he tests his blood sugars once a day. He thought his diabetes mellitus was perhaps responsible for his tiredness, such as when he is gardening and that it might also be the reason he gets stressed; however there was no medical evidence in support of that contention.
19. Table 19 provides as follows:
TABLE 19. ENDOCRINE DISORDERS
The effects of endocrine disorders eg. diabetes mellitus on other body systems eg. the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.
Rating Criteria
NIL Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, Addison's Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.
TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.
…
20. On balance, I consider that it is appropriate to allocate nil points in respect of Mr Swanson’s diabetes mellitus because the condition is adequately controlled with medication.
Anxiety
21. Mr Swanson complained in his application of anxiety and an inability to concentrate. He gave oral evidence that he gets ‘pent up’ and is easily upset when things do not go according to plan. He said he has felt this way for more than two years.
22. Dr George, in the TDR of December 2007, identified “anxiety state” and noted that Mr Swanson was receiving counselling. On 5 March 2008, Dr George completed a “GP Mental Health Care Plan” which provided a “provisional diagnosis” of depression and stated that the treatment was “counselling by Dr George”. Mr Swanson has been prescribed no medication for this condition.
23. A report dated 29 May 2008 by Mr Martin Peters, a consultant psychologist, suggests that Mr Swanson was first referred to him for treatment in May 2008. Mr Swanson said that Mr Peters was the first psychiatrist/psychologist who had treated him, and that he has seen him about six times although, of these only two or three were detailed sessions. Mr Peters wrote that Mr Swanson was:
“suffering from a moderate level of anxiety and depression and probably has been for at least the last six months.”
24. Mr Peters was of the view that Mr Swanson’s poor employment prospects were affecting his psychological state and advised he was providing cognitive behavioural style treatment and that the prognosis was guarded. Mr Peters formally assessed Mr Swanson’s condition as “Chronic Adjustment Disorder with anxious and depressed mood”. This diagnosis was confirmed in a later report dated 3 October 2008..
25. In the job capacity assessment of 21 September 2007, it was recorded that Mr Swanson said that, in about 1995, he had seen Dr Robertson, a psychiatrist, for the purposes of an assessment in association with a veteran’s pension claim. Apparently that claim was unsuccessful and, according to Mr Swanson, he has only his hearing and tinea accepted as being service-caused. Dr Robertson did not treat him at all and he only saw him once. No report by Dr Robertson was available.
26. Table 6 of the Impairment Tables notes in the opening words:
“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders”.
27. Chapter 7 of the Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension states that:
“one should consider whether the person has received optimal and “reasonable” psychiatric treatment and whether with or without such treatment, the person’s level of function will improve within two years”.
28. While Dr George referred to Mr Swanson’s ‘anxiety state’ and made a provisional diagnosis of ‘depression’, there was no evidence of formal psychiatric diagnosis, other than a ‘diagnosis’ by Mr Peters, a psychologist, in May 2008.
29. There was no evidence that Mr Swanson had, prior being referred to Mr Peters,in May 2008, received treatment, such as medication, or referral to a psychiatrist. The medical evidence suggests that Mr Swanson’s anxiety state was not treated and stabilised at the relevant time. The job capacity assessment completed on 5 May 2008 notes, pertinently:
“Mr Swanson is not currently on any medication to manage his condition. He has recently been referred to a psychologist for counselling but is yet to commence. Given this condition has been present for a number of years it is considered as likely to be persist for longer than 24 months… It is anticipated, however, that through effective management of this condition that improvement is likely and as such it is not considered optimally treated and stabilised”.
30. Clauses 4, 5 and 6 of the Introduction to the Impairment Tables make it clear that an applicant’s condition must be a “fully documented, diagnosed condition which has been investigated, treated and stabilised” before the Impairment Tables can be applied to assign an impairment rating. Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”. The applicant’s condition must be “permanent” before it can be assigned a rating. A diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned. A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years. These are mandatory requirements: see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [9] – [11] (Finn J).
31. I find that, during the relevant period, Mr Swanson’s claimed “anxiety state” condition was not a fully documented and diagnosed condition which has been investigated, treated and stabilised. As such, it is not eligible for a rating under the Impairment Tables.
Hypertension
32. Although Dr George mentioned hypertension as a relevant medical condition, he was of the view that significant improvement was expected.
33. Mr Swanson was recorded as having told the SSAT that he was taking medication but no functional loss specifically arising from the condition was reported. He told me that Dr George takes his blood pressure each time he attends and it may vary from time to time, but the doctor is unconcerned. Sometimes he feels ‘pressure in the head’ that he thought might be high blood pressure.
34. I accept, as the job capacity assessor did on 5 May 2008, that Mr Swanson’s hypertension was fully diagnosed, stabilised and treated during the relevant period and should be regarded as permanent.
35. Table 20 provides, relevantly:
TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
…
36. On balance, I consider that it is appropriate to allocate nil points in respect of Mr Swanson’s hypertension under Table 20 because I find his symptoms are easily tolerated with medication and have no appreciable effect on his ability to work.
Varicose Veins
37. Varicose veins are mentioned in Mr Swanson’s claim but the condition is not listed in Dr George’s TDRs of 19 December 2007, 17 March 2008 or 16 April 2009.
38. Mr Swanson told me that sometimes his legs ache because of the varicose veins. Sometimes they affect his ability to stand for long periods. He also experiences some cramping but does not know if that is related to the varicose veins. No medication has been prescribed and, while surgery has been discussed in general terms, none has been scheduled.
39. The Secretary contended that no impairment rating can be given for varicose veins as the condition or its treatment are not fully investigated, documented, diagnosed and stablised and cannot be considered permanent. As Mr Swanson has not provided any medical evidence to support a diagnosis of varicose veins, I agree with the Secretary’s contention and find accordingly.
Hearing Loss
40. Hearing loss was not listed as a condition having any impact in Dr George’s treating doctor’s reports and there were no audiology reports or other medical reports available in relation to the condition, although Mr Swanson said he receives a veteran’s pension because of hearing loss. There was no evidence of hearing loss having any significant impact on Mr Swanson’s daily activities although he said that he has difficulty if there is a lot of background noise. He does not wear hearing aids, nor have they been foreshadowed.
41. The Secretary contended, and I agree, that the condition is not diagnosed, treated and stabilised and cannot be assigned an impairment rating. Had there been some medical evidence in respect of this condition, it may have been rateable.
Alcohol dependence
42. Alcohol dependence was not specifically claimed by Mr Swanson nor was it mentioned in the TDR by Dr George. However, reference to it appears in an earlier job capacity assessment made on 21 September 2007. Mr Swanson presented at that time with a psychiatric report diagnosing alcohol dependence under the DSM IV, and reported a long history of alcohol use for which he received treatment. He had not attended any rehabiliation centres.
43. Alcohol dependence was not mentioned by Mr Swanson nor his treating doctor as being a condition which caused any symptoms affecting daily function.
44. Mr Swanson told me that he used to drink a lot while in the RAAF. Since his retirement from the service he continued drinking, up to about 10 schooners a day. In recent times he has not been able to afford to drink at that rate and will go without a couple of times a week. Dr George has recommended he cut back his drinking, but he has received no other advice in relation to his alcohol consumption. He finds drinking helps him sleep, because otherwise he is a restless sleeper. He mostly drinks at clubs where he meets up with other people. Sometimes he drinks at home.
45. At the job capacity assessment on 28 December 2007 Mr Swanson said that he was not drinking to excess in recent years. That assessor noted that Mr Swanson had not undergone rehabiliation for the condition. The job capacity assessment report of 3 October 2008 mentions “some issues of alcohol dependence”.
46. Mr Swanson was recorded as having told the SSAT was of no functional loss arising from alcohol dependence. According to Mr Swanson he does not have an alcohol problem.
47. There is insufficient information for me to come to a view that the Alcohol Dependence was a fully treated and stabilised condition at the relevant time. It is therefore not eligible for an impairment rating under the Impairment Tables.
Right Hand Numbness
48. Mr Swanson did not list numbness in his right hand in his claim for DSP, nor did Dr George refer to it in the TDR. The condition appears to have been first mentioned in discussion with the job capacity assessor on 28 December 2007.
49. Mr Swanson said that, for about four to five years, he has had the numbness in his right hand. He did not mention it to Dr George until a couple of years ago and then, after a year, he had been referred to a specialist about 12 months ago and had been tested. He said he drops things and his fingers are numb.
50. Dr George is not treating the condition and has not discussed any surgery, and no further appointments with any specialist are planned.
51. There is insufficient information for me to come to a view that the condition was fully diagnosed, treated and stabilised at the relevant time. Accordingly it is not rateable under the Impairment Tables.
A Kidney Disorder
52. Mr Swanson did not claim that he suffered from a kidney disorder in his DSP claim, nor did Dr George mention it in his TDR.
53. Nevertheless, in the job capacity assessment of 21 September 2007, the assessor recorded that Mr Swanson’s GP had blood test results that show he has microscopic haematuria and had been for a renal ultrasound. Mr Swanson reported that his GP had referred him to a specialist for treatment. No further reference to the disorder appears in any of the job capacity assessments or medical reports.
54. Accordingly, I have no medical evidence to indicate this condition has been has been diagnosed, investigated, treated and had stabilised during the relevant period. The condition is not eligible for any points under the Impairment Tables.
Combined impairment
55. Mr Swanson’s overall impairment rating is therefore nil points. This falls short of the 20 points or more required under section 94(1)(b) of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mr Swanson has a continuing inability to work.
56. Unfortunately for Mr Swanson perhaps, the Act imposes a strict window of time during which a claimant must satisfy the legislative criteria. The Act also requires that, to be considered an impairment, a condition must be a “fully documented, diagnosed condition which has been investigated, treated and stabilised” and “permanent”. The medical evidence presented so far by Mr Swanson, particularly that of his treating practitioner, has not assisted his claim. However he is always free to reapply for DSP in future should more supportive medical evidence emerge.
DECISION
57. The decision under review is affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...........[sgd]............
Steven Mulipola, AssociateDate of hearing: 4 August 2009
Date of decision: 17 August 2009
Representative for the Applicant: Self-representedRepresentative for the Respondent: Ms Hannelore Schuster, Centrelink Legal Services and Procurement
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