Thurston and Secretary, Department of Social Services (Social services second review)

[2022] AATA 45

Thurston and Secretary, Department of Social Services (Social services second review) [2022] AATA 45 (18 January 2022)

Division:GENERAL DIVISION

File Number:          2021/2115

Re:Douglas Thurston

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:L Rieper, Member

Date:18 January 2022

Place:Sydney

The Tribunal affirms the decision under review.

......................................[sgd]..................................

L Rieper, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – qualification period – whether the Applicant was qualified to receive DSP on the date of his claim – mental health condition – Impaired hearing and tinnitus – left wrist condition – sleep apnoea – Impairment related qualification criterion not satisfied – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

REASONS FOR DECISION

L Rieper, Member

18 January 2022

1. Mr Thurston seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 31 March 2021.

2. The issue to be determined is whether Mr Thurston was qualified for disability support pension (DSP) following a claim made by him on 28 May 2020.[1]

   [1] T10, T-Documents, 123 – 139.

3. A hearing was held on 16 December 2021 via videoconference. Mr Thurston appeared on his own behalf, and the Secretary was represented by Mr Chang of Services Australia.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.

5. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) sets out the qualifications for DSP:

   (1)    A person is qualified for disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i) the person has a continuing inability to work; …

6. The Tribunal must determine whether Mr Thurston met the qualification for disability support pension at the date of his claim, or within 13 weeks of that date, which in this case would be by 27 August 2020 (‘the qualification period’).[2] The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim, but the evidence must relate to Mr Thurston’s condition and the status of his treatment at the time of his claim or during the qualification period.[3]

   [2] Social Security (Administration) Act 1999 (Cth) s 42.

   [3] See Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

7. In order to satisfy paragraph 94(1)(b) of the Act, Mr Thurston must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’). Under the Tables, a person’s functional impairment may be ranked as mild (5 points), moderate (10 points), severe (20 points) or extreme (30 points).

8. The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given to a medical condition that is permanent. Permanent means:[4]

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [4] See paragraph 6(4) of the Impairment Tables.

9. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider:[5]

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   [5] See paragraph 6(5) of the Impairment Tables.

10. Fully stabilised means:[6]

    (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.

    [6] See paragraph 6(6) of the Impairment Tables.

11. Reasonable treatment is treatment that:[7]

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [7] See paragraph 6(7) of the Impairment Tables.

12. The Secretary concedes, and the Tribunal agrees, that Mr Thurston had medical conditions that cause impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act during the qualification period.

13. It follows that the issues the Tribunal must determine are whether, during the qualification period, Mr Thurston had:

    (a)an impairment rating of 20 points or more under the Impairment Tables; and, if so

    (b)a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Mental health condition

14. In his claim for DSP, Mr Thurston identified post-traumatic stress disorder, major anxiety and major depression as the medical conditions affecting his ability to work.[8]

    [8] T10, T-Documents, 123.

15. The medical evidence indicates that Mr Thurston’s mental health conditions date back many years.

16. Dr Lim, a consultant psychiatrist, examined Mr Thurston on 17 December 2019 for the purposes of assessing his fitness to resume his work as a youth officer and wrote a report for his employer at the time, the Department of Justice.[9] He diagnosed a major depressive disorder with an onset in 2003 which had been complicated over the years by bereavements and stressors. Mr Thurston was not fit from a psychiatric point of view for the full range of duties inherent in a youth officer role. Dr Lim thought that in 6-8 weeks he may be fit for alternative duties or duties with restrictions from working in high secure environments although he was currently unfit for all duties.

    [9] Exhibit A8.

17. On 21 November 2019 Ms Rabay, a registered psychologist, reported that Mr Thurston had been a patient intermittently since 2014.[10] The consultations had been focussed on assisting Mr Thurston manage his mood, particularly depression/anxiety and some indictors of possible post-traumatic stress disorder. Mr Thurston had struggled over the years to cope with some work and personal issues; and had been particularly overwhelmed recently since being suspended from work and not having resolved what he believed to be unfair treatment in his role as a youth officer in a juvenile justice facility.

    [10] T5, T-Documents, 111.

18. On 26 March 2020 Dr Egan, Mr Thurston’s general practitioner, completed a statement for Mr Thurston’s claim for total and permanent disability insurance.[11] He noted that the mental health aspect of the diagnosis was major depression and anxiety and he described Mr Thurston as having ‘ups and downs’ but still needing daily antidepressant medication.

    [11] T8, T-Documents, 116-119.

19. On 2 October 2020 Dr Nepal, a consultant psychiatrist, reported to Dr Egan that he had seen Mr Thurston that day.[12] Mr Thurston had recently been medically discharged from his job as a youth officer. He took a history of psychiatric symptoms starting in 2004 in the context of the death of a friend by suicide. Mr Thurston had reported some features of post-traumatic stress disorder. Dr Nepal diagnosed adjustment disorder with mixed anxiety and depressive features, chronic depression which had been present since an earlier episode of major depression, ‘features’ of post-traumatic stress disorder and ‘features’ of prolonged and unresolved grief and losses of the past. He noted that Mr Thurston needed further treatment regarding his psychiatric issues with a combination of medications and psychological therapy.

    [12] T20, T-Documents, 187-189.

20. Mr Thurston gave evidence that his medication increased at the start of 2021. He was already on the maximum dosage of Endep and so his dosage of Valdoxan was increased from one 25mg tablet per day to two per day. 

21. On 15 February 2021 Ms Rabay reported to Dr Egan that Mr Thurston had been attending counselling with her intermittently since 2015 and had decided to continue the process under the direction of Centrelink. Over time he had made some improvements in his mental health with particular focus on improved stress management and physical health management. Mr Thurston had noted a general reduction in addiction behaviour although he had stated that he still becomes overwhelmed by grief. They were to meet again for bereavement support.

22. According to Mr Thurston, Ms Rabay has not been contactable for some months. Mr Thurston prepared his own summary of consultations which indicates that he first consulted with Ms Rabay in November 2013 and then saw her a few times per year, with less consultations in 2020 and 2021 which he said were due to pandemic lockdowns. Mr Thurston also provided a Medicare patient history report covering the period 1 January 2018 to 1 July 2021 which records his consultations with Ms Rabay.[13] The Tribunal agrees that the consultations were intermittent. Mr Thurston has now been referred to a new psychologist.

    [13] Exhibit A10.

23. On 9 June 2021 Dr Egan, general practitioner, wrote a report for Mr Thurston.[14] He noted that he had been Mr Thurston’s general practitioner for 15 years. Mr Thurston’s most significant condition was his post-traumatic stress disorder with anxiety and depression. He had had significant symptoms for over a decade and was still affected by it, currently being on two antidepressants, after having been trialled on many other antidepressants. On 9 September 2021 Dr Egan advised that Mr Thurston had been prescribed Valdoxan tablets since January 2020.[15]

    [14] Exhibit A4.

    [15] Exhibit A6.

24. On 28 July 2021 Ms Trisha, a clinical psychologist, reported to the Secretary’s lawyers after undertaking a file review but not interviewing or examining Mr Thurston.[16] Ms Trisha spoke to Dr Egan and opined that Mr Thurston presented with a major depressive disorder which was fully diagnosed, but not fully treated and stabilised during the qualification period. She considered that the symptoms of a post-trauma nature were not fully diagnosed, treated and stabilised.

    [16] Exhibit R2.

25. The Secretary accepts that that Mr Thurston’s major depression and anxiety were fully diagnosed but contends that they were not fully treated or stabilised during the qualification period. The Secretary says that at the start of the qualification period Mr Thurston had recently been medically discharged from his employment and he did not undertake all the treatment which was available to him by the end of the qualification period. In particular, he had access to up to ten mental health care sessions per calendar year through Medicare, but he did not use them all. The Secretary also submitted that Mr Thurston’s mental health problems were contributed to by his untreated hearing problems.

26. As noted above, the Impairment Tables say that a condition is fully stabilised if 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 two years, or the person has not undertaken reasonable treatment and there is a medical or other compelling reason for the person not to undertake reasonable treatment.[17]

    [17] See paragraph 6(6) of the Impairment Tables.

27. Mr Thurston saw Dr Nepal just over a month after the end of the qualification period. Dr Nepal noted ‘features’ of post-traumatic stress disorder rather than giving a diagnosis of post-traumatic stress disorder. A diagnosis of post-traumatic stress disorder was also contemplated earlier by Ms Rabay (see for example her report of 21 November 2019)[18] and noted by Mr Thurston in his claim for DSP. Dr Nepal recommended further treatment but provided no commentary on the likely functional improvement or Mr Thurston’s fitness for work. 

    [18] T5, T-Documents, 111.

28. The Tribunal is satisfied that Mr Thurston’s mental health condition was not fully diagnosed at the time of his claim because his post-traumatic stress disorder was not fully diagnosed at that time. Whilst Mr Thurston’s depression and anxiety were diagnosed, the Tribunal has significant doubts as to whether they were fully treated and fully stabilised. As of 2 October 2020, Dr Nepal thought that further treatment was necessary.

29. It is very difficult to determine from the evidence how much of Mr Thurston’s mental health condition during the qualification period was due to depression and anxiety and how much was due to the undiagnosed post-trauma condition.

30. Ms Trisha’s analysis and opinion are helpful to some extent. She reached the conclusion that Mr Thurston’s longer term incapacity is related to his post-traumatic stress disorder rather than his underlying major depressive disorder. She reached this conclusion after speaking to Dr Egan who advised that Mr Thurston was unable to get rid of the thoughts in his mind and became emotional recounting a workplace tragedy and that complex post-traumatic stress disorder was a barrier to him doing useful work or interacting with work colleagues.

31. The Tribunal is also mindful that at the time Mr Thurston lodged his claim, he had not seen Ms Rabay for some two months and he did not consult her again until 15 February 2021, some eight and a half months later and apparently at Centrelink’s direction. Mr Thurston also did not increase his dosage of Valdoxan until early 2021.

32. In summary, the Tribunal is satisfied that whilst Mr Thurston’s mental health conditions were partially diagnosed as at the qualification period, they were not fully treated or fully stabilised at the time. This means that his mental health condition cannot be considered for an impairment rating.

    Impaired hearing and tinnitus

33. Mr Thurston told the Tribunal that his hearing problems date back to when he was about 12 years old and involved in a head clash. He had two or three operations on his ear to try and fix his hearing.

34. A history of Mr Thurston’s medical conditions, contained in Dr Egan’s report of 9 June 2021, indicates that Mr Thurston underwent surgery on his right ear in 1972 and that he was diagnosed with ‘deafness (R>L)’ and tinnitus in 2010.  Mr Thurston told the Tribunal that the tinnitus came on during a plane trip.

35. In consultation notes recorded on 17 September 2019, Dr Egan noted that Mr Thurston’s tinnitus was getting worse.[19] The note does not indicate that any further action was taken at that time.

    [19] T4, T-Documents, 109.

36. On 10 September 2020 Dr Greenberg, an ear nose and throat specialist, reported to Dr Egan that he had seen Mr Thurston for review.[20] He had performed a malleovestibulopexy on Mr Thurston seven years earlier which had gone well, and Mr Thurston’s last hearing test had shown an excellent result, albeit with some underlying sensorineural hearing loss related to noise exposure. As the test had been done six years earlier an up to date review was required and he would then see Mr Thurston with the results of his test.

    [20] T18, T-Documents, 185.

37. On 12 September 2020 the hearing test was reported by Ms Hunt, a clinical audiologist, as indicating mild to moderately-severe sensorineural loss on the left and a moderate to profound mixed loss on the right.[21] Tympanometry was normal in the left ear; eardrum compliance was abnormally high in the right ear. Mr Thurston had indicated that tinnitus was a source of anxiety and depression and a hearing aid review was suggested to see whether consistent use of hearing aids could alleviate the tinnitus and reduce the communication effort.

    [21] T19, T-Documents, 186.

38. In his report dated 9 June 2021, Dr Egan advised that since the 1970s Mr Thurston had been troubled by right ear dysfunction causing decreased hearing and tinnitus. He noted that there had been a second operation in 2014 but the symptoms remained.

39. Mr Thurston gave evidence that he did not return to see Dr Greenberg after the hearing test, and he has not tried using hearing aids since Ms Hunt’s recommendation. He said that he tried hearing aids after the surgery undertaken by Dr Greenberg. He also said that he was concerned about the cost.

40. The Secretary accepts that Mr Thurston’s hearing condition was fully diagnosed during the qualification period but contends that it was not fully treated and stabilised.

41. The Tribunal accepts the Secretary’s position. Whilst it is apparent that Mr Thurston reported his worsening tinnitus to Dr Egan prior to the qualification period, he was not further assessed until after the qualification period and at that time further treatment, in the form of hearing aids was recommended. Mr Thurston has not tried the hearing aids and has not returned to see his specialist since the updated hearing test was conducted. The Tribunal is therefore not satisfied that Mr Thurston’s tinnitus or hearing loss were fully treated and fully stabilised during the qualification period.

    Left wrist condition

42. Mr Thurston told the Tribunal that he was involved in a motorcycle accident in 1991. He subsequently required surgery and his left wrist was fused. He is left-handed.

43. Mr Thurston also said that he has had the top of a finger on each hand severed in the past.  The left was reattached, but the right was not. There is no medical evidence before the Tribunal regarding these injuries.

44. Mr Thurston underwent an x-ray of his left wrist on 31 August 2020 which showed a complete bony fusion/ankylosis at the radiocarpal joint and part of the intercarpal joint between the scaphoid, ulna, trapezium and trapezoid.[22] It was noted that this would result in restricted range of movement, however the degree of which would need to be assessed clinically.

    [22] T17, T-Documents, 184.

45. In his report dated 9 June 2021, Dr Egan advised that Mr Thurston’s left wrist injury has been an ongoing source of discomfort and decreased functionality with the wrist having been fused and thus less mobile.

46. The Secretary accepts that Mr Thurston’s left wrist fusion was fully diagnosed, treated and stabilised during the qualification period. However, the Secretary says the functional impairment caused by this condition warrants an assessment of no more than 5 points under Table 2 of the Impairment Tables, which is the table to be used to assess upper limb function where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

47. Table 2 of the Impairment Tables says that there is a mild functional impact, equating to 5 points when:

    (1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    (b)       handling very small objects (e.g. coins);

    (c)       doing up buttons;

    (d)       reaching up or out to pick up objects.

    There is a moderate functional impact, equating to 10 points when:

    (1)The person has difficulty with most of the following:

    (a)       picking up a 1 litre carton full of liquid;

    (b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)       holding and using a pen or pencil;

    (d)       doing up buttons or tying shoelaces;

    (e)       using a standard computer keyboard;

    (f)       unscrewing a lid on a soft-drink bottle.

1. Mr Thurston gave evidence that he cannot use tools such as a hammer or power tools for prolonged periods. He can hold a pen but has trouble writing for more than about 15 minutes. He has some trouble using a keyboard and he cannot lift more than 5 kilograms. He can lift a 2 litre bottle of soft drink, he can do up buttons and he can pick up coins although sometimes he drops small objects. He can pick up light objects off a table.

2. The Tribunal accepts that Mr Thurston has some impairment of function of his left wrist. However, given the evidence available the Tribunal is satisfied that the impairment is mild and at the most it attracts an impairment rating of 5 points.

   Sleep apnoea

3. There is very little medical evidence before the Tribunal regarding Mr Thurston’s sleep apnoea. It is mentioned by Dr Egan in his report of 9 June 2021, and a referral letter dated 18 November 2021,[23] but only in a past history which appears to indicate that on 3 February 2011 Mr Thurston was diagnosed with obstructive sleep apnoea and a CPAP machine was prescribed. The only other reference the Tribunal could locate is in Dr Nepal’s report of 2 October 2020. He noted that Mr Thurston has sleep apnoea and uses a CPAP machine.

   [23] Exhibit A11.

4. Mr Thurston told the Tribunal that he continues to use a CPAP machine successfully.

5. The Secretary contends there is insufficient corroborating evidence to consider that Mr Thurston’s sleep apnoea was fully diagnosed, treated and stabilised during the qualification period. The Secretary points to the lack of specialist evidence to support the contention that the condition was not fully diagnosed. 

6. The Tribunal is satisfied that the condition was fully diagnosed given that there is a medical diagnosis in Dr Egan’s report, however there is no evidence of any ongoing impairment. Mr Thurston said that the CPAP machine works and gave no indication of any ongoing issues related to his sleep apnoea. This means no impairment rating can be assigned.

   Spinal condition

7. Mr Thurston gave evidence that he was assaulted at work in the late 1990s resulting in a fractured vertebra between his shoulder blades. Mr Thurston said it is ‘sore and uncomfortable from time to time’ but he is not obtaining any treatment.

8. The only reference to a spinal condition appears in the report of Dr Nepal. It is not mentioned in Dr Egan’s report of 9 June 2021.

9. The Secretary contends there is insufficient corroborating evidence to consider that Mr Thurston’s spinal condition was fully diagnosed, treated and stabilised during the qualification period.

10. The Tribunal agrees. In the absence of evidence of a diagnosis, the Tribunal is not in a position to consider whether there is any impairment of Mr Thurston’s back.

    CONCLUSIONS

11. The Tribunal is satisfied that at the qualification period, Mr Thurston had an impairment rating of 5 points under the Impairment Tables. This means that Mr Thurston did not fulfil the qualification requirements set out in subsection 94(1) of the Act because he did not have an impairment of 20 points or more under the Impairment Tables at the relevant time.

12. It is therefore not necessary for the Tribunal to go on and consider whether Mr Thurston has a continuing inability to work as defined in subsection 94(2) of the Act.

13. The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member

.....................................[sgd]...................................

Associate

Dated: 18 January 2022

Date of hearing:	16 December 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr Tim Chang, Services Australia