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

[2023] AATA 1567

Watkins and Secretary, Department of Social Services (Social services second review) [2023] AATA 1567 (6 June 2023)

Division:GENERAL DIVISION

File Number(s):      2022/1373

Re:Aaron Watkins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:6 June 2023

Place:Adelaide

The decision under review is affirmed.

...............[sgnd]............................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review is 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

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member K Millar

6 June 2023

BACKGROUND

1. Mr Watkins lodged a claim for disability support pension on 7 July 2021. In his claim, Mr Watkins listed major spinal surgery, post-traumatic stress disorder (‘PTSD’) and severe depression as the conditions that prevent him from working.    

2. Mr Watkins previously ran his own business as a qualified mechanic and had also worked in parts sale until 2019, after which he stopped working.

3. His claim was refused, and further reviews by an Authorised Review Officer and by the Social Services and Child Support Division of this Tribunal (‘AAT1’) affirmed this decision.  Mr Watkins’ nominee, his father Mr Chris Watkins, applied for a further review of the decision.

   THE HEARING

4. Mr Watkins has been cared for by his parents, who have moved interstate to the Northern Territory to live with him. At the time of the hearing, Mr Watkins was in northern Queensland with family friends on the advice of his psychiatrist. His father said any reference to the motor vehicle accident which resulted in Mr Watkins’ back injury and PTSD, or the insurance company, were trigger points for Mr Watkins and could not be discussed. He said that if Mr Watkins was in Queensland and had a meltdown, the people he was staying with would not be able to cope. It was unknown when Mr Watkins was likely to return to the Northern Territory.

5. The Tribunal contacted Mr Watkins by phone to confirm that he was aware of the hearing and the decision under review. The Tribunal was assisted by the Secretary in providing an explanation to Mr Watkins on the effect of him not giving evidence. The Tribunal offered to adjourn the hearing to another day to allow Mr Watkins to give oral evidence or for Mr Watkins to obtain legal advice. 

6. Mr Watkins advised he wanted the matter to proceed in his absence.

7. As it became apparent at the end of the hearing that Mr Watkins’ father did not have all the documents that were before the Tribunal, the Tribunal adjourned the hearing to provide the additional documents and to provide a further opportunity for Mr Watkins to appear. On reviewing the additional documents and conferring with Mr Watkins, Mr Watkins’ father requested that the matter be decided on the material before the Tribunal.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

8. Under s 94(1) of the Social Security Act 1991 (‘the Act’), to qualify for a Disability Support Pension a person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have a continuing inability to work.

9. The Tribunal must look to Mr Watkins’s circumstances as they were at the time of the claim and the period of 13 weeks after the claim was lodged.[1] This is the period between 7 July 2021 to 6 October 2021 (‘the assessment period’). 

   Does Watkins’s have a physical, intellectual or psychiatric impairment?

   [1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

10. A report dated 15 March 2021, by orthopaedic surgeon, Dr Oosti confirms Mr Watkins has symptomatic cervical and lumbar spine spondylosis. His general practitioner provides a diagnosis of major depression and PTSD.

11. The Tribunal finds Mr Watkins has physical and psychiatric impairments. 

    Does Watkins’s have an impairment of 20 points or more under the impairment tables?

12. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]

    [2] Clause 6(3) of the Impairment Tables.

13. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]

    [3] Clause 6(4) of the Impairment Tables.

14. In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]

    [4] Clause 6(5) of the Impairment Tables.

15. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7] 

    Which of Mr Watkins’s conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?

    [5] Clause 6(6)(a) of the Impairment Tables.

    [6] Clause 6(7)(c) of the Impairment Tables.

    [7] Clause 6(7)(e) of the Impairment Tables.

    Cervical and lower back pain

16. In March 2021, Dr Oosti reported that Mr Watkins’ spinal conditions had reached maximum medical improvement and are unlikely to change significantly over the next 12 – 18 months. Mr Watkins had surgery to his spine in November 2019.

17. Mr Watkins reported to Dr Oosti he had neck pain radiating to both shoulders, and debilitating lower back pain radiating to his buttocks and legs. It was reported that he could carry out normal activities of daily living unaided but finds it difficult to lift any heavy weights and/or sit for more than one hour.

18. Mr Oosti reports that the restrictions that would be required for Mr Watkins to return to work include avoidance of any overhead activities, prolonged or repetitive bending froward, prolonged or repetitive heavy handling using either upper limb (over 10 kg) and prolonged driving or being a passenger in a motor vehicle for prolonged distances.  

19. In his claim form, Mr Watkins stated there was a planned operation in September 2021 to assist with his back condition. In the Job Capacity Assessment Report dated 2 November 2021, this is reported to be skin removal surgery to assist in the management of back pain by removing excess skin. A medical certificate was provided from Dr Ravi Mahajani, a plastic and reconstructive surgeon, stating Mr Watkins was absent from work between 8 – 27 September 2021 for “medical reasons” during the assessment period. The medical certificate does not comment on the nature of his condition, any surgery conducted, or the outcome of any surgery conducted. 

20. Given the opinion of an orthopaedic surgeon that Mr Watkins’ back condition has reached maximum medical improvement, the Tribunal finds this the condition is fully treated and stabilised. While it appears Mr Watkins hoped further surgery would improve his condition, there is no further evidence that this was medically recommended or resulted in an improvement to his spinal conditions. 

21. The Tribunal considers this condition fully diagnosed, treated and stabilised in the assessment period.

    Mental health

22. Medical certificates from September 2020 provided a diagnosis of PTSD and depression. On 11 December 2020, Mr Watkins’ general practitioner stated he anticipated major improvements over the next 6 – 18 months.

23. A letter dated 2 April 2020 from Dr Tranter, a psychiatry registrar, shows Mr Watkins was being treated by the Mental Health Access Team for major depressive disorder and PTSD. The treatment included medications and psychological therapy. It is reported Mr Watkins experienced flashbacks and nightmares relating to his motor vehicle accident, a heightened state of anxiety and that he avoids triggers. He experiences episodes of dissociative rage and panic which he finds challenging to manage. 

24. The Tribunal notes that a psychiatry registrar is not a psychiatrist, and the diagnosis of the condition must be from a medical practitioner with evidence from a clinical psychologist. 

25. In this case, Mr Watkins’ general practitioner has provided a diagnosis of major depression and PTSD. Mr Watkins has received counselling. While the Tribunal could not locate a record of the counsellor he consulted as a clinical psychologist on the Australian Health Practitioners Regulation Agency (‘AHPRA’) register, it is now a considerable time since these sessions. The job capacity assessor records that the counsellor was registered as a clinical psychologist in APHRA at the time of the job capacity assessment. The Tribunal has presumed in Mr Watkins’ favour that this was correct at the time Mr Watkins was seeing this counsellor, and that his counsellor was a clinical psychologist and that the condition is fully diagnosed.   

26. Mr Watkins provided progress notes from counselling he had undertaken with Open Arms. 

27. On 25 March 2021, the peer support counsellor who was assigned to Mr Watkins, reported that Mr Watkins had an upbeat demeanour and was very vocal and engaged. Mr Watkins reported that a negative result with his legal claim against the insurer would cause him a great deal of distress. It is reported Mr Watkins continues to experience anxiety about the insurance case. On this date, Mr Watkins’ case was closed, and he ceased contact with Open Arms.

28. The reports from counselling include that Mr Watkins:

    ·     Has a number of contacts locally and has one close friend with whom he has regularly has barbeques.

    ·     Prefers solitude out in the bush to socialising.

    ·     Enjoys camping and bushwalking and cycles regularly.

    ·     Is in the process of building a CNC plasma cutting machine.

    ·     Has investigated re-training. As the cost was prohibitive, he was also looking at an apprenticeship through one of his contacts.

29. In April 2021, despite having travelled to Adelaide for an assessment of his insurance claim, Mr Watkins was reported to be focussing on the future and the development of his plasma cutting tool. The protective and supportive elements in his life were his parents, his future employment and income prospects with the plasma cutting machine, a good range of social connections and access to counselling through Open Arms if needed.

30. In a job capacity assessment dated 2 November 2021, shortly outside the assessment period, Mr Watkins is reported as stating he has some issues with sleep, socialising and does not like driving. He was not engaged in counselling or psychological support at that time and said there were extensive waitlists in the Northern Territory. It is noted by the assessor that Mr Watkins’ overall well-being had improved, resulting in the cessation of therapy.

31. A report from Dr Kara Britz dated 19 July 2022 recorded that the treatment plan is for Mr Watkins to attend a psychiatrist Dr Gagan Garg, and a psychologist Mr Scott Bevis, and continue ongoing medical management. Dr Britz considered Mr Watkins had no capacity for work in the period 19 July 2022 to 19 September 2022. 

32. A letter from Dr Garg, dated 27 July 2022, states Mr Watkins is under his care and is required to travel to Brisbane for medical assessment. This letter does not specify a diagnosis, treatment, or the symptoms Mr Watkins suffers and falls outside the assessment period. 

33. Mr Watkins’ father gave evidence that Mr Watkins’ mental health in the assessment period could best be described as unstable and was at times he was a danger to himself and had contemplated suicide. His father had taken him to mental health services due to meltdowns and Mr Watkins had made threats to others involved in his insurance claim. His father said that when he has a meltdown, he becomes physically violent punching doors, yelling and screaming, and sitting and crying. This occurred every couple of days to once a month. After one of these episodes, Mr Watkins hibernates for a fortnight. 

34. Mr Watkins’ father said he and his wife have assisted with shopping, washing, ironing, cleaning and manual labour. He has been assisting with the plasma cutting machine. Mr Watkins attends to his self-care but is sloppy with his hygiene when he has a meltdown. His father reports he has few friends and goes out to fly drones with them, but this activity and his bushwalking ceased in the assessment period, and he was up and down with his mood swings. His father said he has had to sleep outside Mr Watkins’ bedroom door because of concerns he would harm himself. 

35. At this time, his father reports that Mr Watkins was able to spend a day “on and off” developing the plasma cutter and would spend more time on tasks if there was no physical effort involved. He could spend 2 – 3 hours on design work before becoming overwhelmed. 

36. To be fully diagnosed and treated, it must be considered whether there is corroborating evidence of the condition, what treatment and rehabilitation have occurred in relation to the condition and whether treatment is continuing or planned in the next two years. 

37. There is a lack of information on the ongoing treatment or care for Mr Watkins’ mental health. The most contemporaneous information to the assessment period is that from the Open Arms summary in April 2021, three months before the assessment period. This does not display the level of mental distress described by Mr Watkins’ father, who states he had frequent meltdowns and was taken to hospital. 

38. Mr Watkins’ parents have made significant sacrifices to be with Mr Watkins and to assist him. They have seen repeated “meltdowns” and have held concerns for Mr Watkins’ safety and witnessed threats to others. This is understandably what comes to mind when asked to describe his condition. However, the account of Mr Watkins’ father is at odds with the closing report of Open Arms.

39. It may be that after concluding counselling with Open Arms, Mr Watkins’ mental health has deteriorated. It is apparent he has now been referred to additional services and has seen a psychiatrist, however it was not clear if this was due to an exacerbation of his existing condition or because it was not yet fully treated and stabilised. 

40. In the absence of information and an assessment of his mental health in the assessment period, the reports from Open Arms and his current treatment requirements, the Tribunal is not satisfied Mr Watkins’ condition was fully treated and stabilised in the assessment period.

    Impairment points

41. Turning first to Mr Watkins’ spinal condition. As Mr Watkins did not give oral evidence, the Tribunal is limited to reports of his condition in the documents before it and the record of his oral evidence before AAT1.

42. Before AAT1, Mr Watkins reported pain when sitting or standing and that he takes paracetamol or aspirin to manage the pain. 

43. To have a rating of 10 impairment points, Mr Watkins must be able to sit in or drive a car for at least 30 minutes; and at least one of the following applies:

    (a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

44. Dr Oosti reports Mr Watkins’ symptoms included not being able to sit for more than one hour, and that he should avoid prolong driving or being a passenger. The Tribunal finds that in the assessment period, he was able to sit in or drive a car for at least 30 minutes. Dr Oosti states Mr Watkins’ capacity for work involves avoidance of any overhead activities. This meets criterion (a), an inability to sustain overhead activities, and the requirements for 10 impairment point is met.

45. The requirement for 20 impairment points is that the person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)      remain seated for at least 10 minutes.

46. Mr Watkins’ father states he meets items (a), (b) and (d) of the requirements for 20 impairment points. 

47. There is insufficient evidence to show that Mr Watkins is unable to perform any overhead activities, as opposed to avoiding any overhead activities. Mr Watkins was reported to be able to manage activities of daily living. Activities of daily living include activities such as washing his hair or reaching above his head for objects.

48. Mr Watkins did not give evidence, and the Tribunal is left with uncertainty about what Dr Oosti means by “avoiding any overhead activities”, and whether Mr Watkins is unable to perform any overhead activities. In the absence of any oral evidence from Mr Watkins, the Tribunal does not consider there is sufficient information to show he meets (a).

49. The information before the Tribunal does not show Mr Watkins meets (b), and the report that he can sit for an hour means he does not meet (d). As a result, he does not meet the requirements for 20 impairment points.

50. Mr Watkins’ spinal condition has 10 impairment points.

51. As his mental health conditions were not fully treated and stabilised in the assessment period, impairment points cannot be assigned to this condition.

52. As Mr Watkins has an impairment rating of 10 points, he does not meet the requirement in s 94(1)(b) of the Act to have an impairment rating of at least 20 points.

    CONCLUSION

53. Mr Watkins was involved in a motor vehicle accident in 2004 that has had significant and long-standing effects on his physical and mental health. These are to the extent that his parents have relocated to assist in his care, he is unable to continue in his former occupation as a mechanic, and he suffers significant psychological distress. 

54. The evidence before the Tribunal leads to a conclusion that Mr Watkins’ mental health was not sufficiently treated and stabilised in the assessment period to allow an impairment rating to be assigned to this condition. However, as he is accessing additional specialist support from a psychiatrist and has been referred again to a psychologist, he may lodge a new claim for a disability support pension with current information on the treatment and status of his mental health. 

    DECISION

55. The decision under review is affirmed. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

...............[sgnd]........................

Legal Associate

Dated:  6 June 2023

Date of Hearing: 1 November 2022

Advocate for the Applicant:

Self-represented

Advocate for the Respondent:

Mr Riley Calaby

Services Australia