TIBBEY and SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 199

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2011/4246

General Administrative Division           )

Re: ELEANOR TIBBEY
Applicant

And: SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent

CORRIGENDUM FOR DECISION

TRIBUNAL:             Miss Anne Shanahan, Member

DATE:                      10 April 2012

PLACE:                   Melbourne

Member Shanahan made a Decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 5 April 2012.

In accordance with s 43AA(1) of the Act, the Tribunal directs that the text on the final page be altered in the following way:

1.delete Counsel for the Respondent and Mr Andrew Pascale; and

2.delete Solicitor for the Respondent and replace with Advocate for the Respondent.

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

Member

[2012] AATA 199

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4246
Re	ELEANOR TIBBEY
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

Decision

Tribunal	Miss E A Shanahan, Member
Date	5 April 2012
Place	Melbourne

Decision Summary     The Tribunal affirms the decision of the Social Security Appeals   Tribunal dated 2 September 2011.  The applicant is not eligible for   disability support pension.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – Disability Support Pension (DSP) – failure to meet requirements of s 94(1)(b) – Interim decision that applicant qualifies for DSP – psychiatric condition not fully treated, diagnosed and stabilised – decision affirmed.

Social Security Act 1991 Schedule 1B

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Administrative Appeals Tribunal Act 1975 s 37(1)(a)

Social Security Act 1991 s 94(2)

REASONS FOR DECISION

Miss E A Shanahan, Member

4 April 2012

1. On 15 March 2011 Ms E Tibbey applied to Centrelink for a disability support pension (DSP). On 28 April 2011 a Centrelink officer made a decision to reject the application because Ms Tibbey did not have the required impairment rating of 20 points under the   Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. On 1 July 2011 a Centrelink Authorised Review Officer (ARO) affirmed the decision.

2. Ms Tibbey sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 2 September 2011 the SSAT affirmed the ARO’s decision that Ms Tibbey did not qualify for the DSP as she did not have the required impairment rating of 20 points.  Ms Tibbey lodged an application for review of the SSAT decision with this Tribunal on 5 October 2011.  On 17 January 2012 Ms Tibbey is said to have qualified for the DSP in accordance with the new impairment rating tables introduced by the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.

3. The hearing was conducted by telephone as Ms Tibbey resides in Mildura. She was represented by Mr K Devereux, a mental health nurse employed by the Mental Health Services. Mr A Pascale appeared for the Secretary. The Tribunal had before it the documents lodged pursuant to s 37(1)(a) of the Administrative Appeals Tribunal Act 1975 (T-documents and ST-documents). 

   SUMMARY OF THE APPLICATION

4. The issue before the Tribunal as enunciated by Mr Pascale was whether, as of 15 March 2011 or within 13 weeks of that date (the relevant period), Ms Tibbey had a combined impairment rating of 20 points under the Impairment Tables; and if so did she have a continuing inability to work 15 hours or more per week under s 94(2) of the Act.

5. Ms Tibbey had worked in the Individual Support Accommodation Services as a personal carer and has completed an Aged Care Certificate Class III.  She ceased work in mid‑2010 after leaving her place of residence as a result of severe domestic violence.  The latter precipitated a mood disorder said to be depression.  Ms Tibbey subsequently moved interstate and now lives in Mildura in Victoria.  In addition to the depression, she suffers from pain and weakness in the left wrist resulting from fractures of the left radius and ulna which had necessitated internal fixation in 2006. She also suffers from weakness of the right upper limb following right forearm tendon lacerations approximately 10 years ago and oesteoarthrosis (termed osteoarthritis in the Impairment Tables) of the lumbar and thoracic spine giving rise to pain and limited mobility. (T-docs 5 and 6)

6. Following two job capacity assessments (JCA) and the receipt of further medical reports from Dr J Cannon, general practitioner, the Health Professional Advisory Unit (Advisory Unit) recommended on 18 April 2012 an impairment rating of 10 points for Ms Tibbey’s oesteoarthrosis (termed osteoarthritis in the Impairment Tables) of the spine and nil points for the mood disorder as the latter was not fully diagnosed, treated and stabilised.  The Advisory Unit anticipated that with appropriate medical treatment and the provision of support services, Ms Tibbey would achieve a 15 to 22 hour per week work capacity within three months.  Ms Tibbey’s anti-depressant medication was not altered and she did not see a psychiatrist or a psychologist during the period under consideration, that is between March and September 2011. Nor did she accept any of the support services offered by the job capacity assessors. 

7. Over the 12 month period between 23 September 2010 and 20 September 2011, Ms Tibbey has had four treating general practitioners, all of whom have identified the same medical conditions and relied on the history given by Ms Tibbey.  There are no reported investigations by these doctors during this period.

8. Ms Tibbey lodged a further application for the DSP this being dated 30 December 2011.Her application was accompanied by a treating doctor’s report from Dr S Datta, general practitioner, of Mildura (ST-doc 2). Dr Datta stated that Ms Tibbey had seen a psychiatrist, a psychologist for cognitive behavioural therapy and a mental health nurse. Dr Datta further stated that Ms Tibbey was taking Diazepam (Valium), Mirtazapine (an anti-depressive), Panadeine Forte, Mobic and Thyroxine.   Dr Datta considered all the conditions to be likely to persist for 24 months or more and as a result Ms Tibbey’s ability to function would fluctuate and/or deteriorate. 

9. At Mr Devereux’ initiation, Dr J Pollock, a psychiatrist, saw Ms Tibbey and reported to Dr Datta on 4 November 2011 (ST-doc 3).  Dr Pollock recommended Ms Tibbey cease Zoloft and be stabilised on Mirtazapine and a regular dose of Benzodiazepine; and then commence a Benzodiazepine withdrawal program.  Once stabilised, he recommended attempts should be made to reduce Ms Tibbey’s use of Codeine-based analgesics.  Dr Pollock did not provide a psychiatric diagnosis other than long standing pattern of abuse and dependence of prescription medications, or a prognosis. 

10. Ms Tibbey has commenced a Medicare-funded course of attendances (10 visits) with a psychologist, for counselling and cognitive behavioural therapy. 

11. In her evidence to the Tribunal, Ms Tibbey confirmed that Dr Datta had stopped the Zoloft medication and commenced the Mirtazapine. The dosage of Mirtazapine has recently been changed, her Thyroxine dosage has been increased and Fentanyl patches have been prescribed for pain control, allowing her to cease taking Panadeine Forte.  Dr Datta is supervising the Benzodiazepine withdrawal program and the course of treatment by a psychologist has yet to be completed.  Dr Pollock has not arranged a review for Ms Tibbey.

    RELEVANT LEGISLATION

    94Qualification 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;

    (ii)  the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and  ...

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)     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.

    Note:    For work see subsection (5).

12. Schedule 1B of the Act contains the Impairment Tables for the impairment rating of various disease processes.

    submissions

13. The parties made no formal submissions.

    tribunal’s deliberations

14. Ms Tibbey’s spinal degenerative oesteoarthrosis (termed osteoarthritis in the Impairment Tables) has been assessed on several occasions and assigned an impairment rating of 10 points under the Impairment Tables. 

15. The exact status of the effects of the right forearm tendon lacerations (surgically repaired) and the left radial and ulna fractures has not been assessed by any reporting medical practitioner; nor has the occasionally reported shoulder capsulitis (side not stated). The Tribunal was not provided with any x‑ray results or specialist opinion.  These conditions were present for many years prior to Ms Tibbey ceasing work in aged care.  They cannot be considered fully diagnosed, treated or stabilised.

16. Similarly, Ms Tibbey’s psychiatric disorder or at least the type of disorder is unclear.  The treating general practitioners favour a diagnosis of depression.  Dr Datta diagnosed depression and anxiety and Dr Pollock refers only to a pattern of abuse and dependence on prescription drugs.  Whatever the diagnosis, the treatment regime has only been in place since December 2011 and medication doses have yet to be stabilised.  The dose of Thyroxine has recently been increased as Ms Tibbey’s treating doctors have recognised hypothyroidism as a possible contributing cause to any depression she may have. 

17. The Tribunal finds that Ms Tibbey’s medical conditions, other than her spinal oesteoarthrosis (termed osteoarthritis in the Impairment Tables), were not fully diagnosed, treated and stabilised during the relevant period; and on the evidence provided, it remains so as at the date of the hearing. 

18. As a result, Ms Tibbey does not meet the requirements of s 94 (1) of the Act.

19. Therefore, the Tribunal affirms the decision under review. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

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

Associate

Dated 5 April 2012

Date of hearing	8 March 2012
Advocate for the Applicant	Mr Kieran Devereux
Solicitors for the Applicant	Self-represented
Counsel for the Respondent	Mr Andrew Pascale
Solicitor for the Respondent	Ms Ailsa Bramley