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

[2017] AATA 379

Watkins and Secretary, Department of Social Services (Social services second review) [2017] AATA 379 (24 March 2017)

Division	GENERAL DIVISION
File Number	2016/0678
Re	Suzanne Watkins
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	24 March 2017
Place	Melbourne

The decision under review is affirmed.

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D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully stabilised – whether conditions have functional impact – reasonable treatment recommended but not undertaken – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)

Social Security (Administration) Act 1999, Sch 2, cl 4(1)

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

REASONS FOR DECISION

D. J. Morris, Member

24 March 2017

BACKGROUND

1. On 9 September 2015 Mrs Suzanne Watkins applied for a Disability Support Pension (DSP).  On 11 September 2015, having assessed her claim, the Department of Social Services (the Department) rejected her claim.  This was the original decision.

2. Mrs Watkins sought a review of this decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 23 November 2015 the ARO affirmed the original decision.

3. Dissatisfied with that decision, Mrs Watkins sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).  A hearing was held on 12 June 2016 and AAT1 found that, while Mrs Watkins was assigned 20 impairment points (10 points under two Tables), she had not completed a program of support.  Consequently AAT1 affirmed the decision that Mrs Watkins’ claim for DSP cannot succeed.

4. Mrs Watkins has now sought a review by the General Division of the Tribunal.  That is this hearing.  It was made clear at the commencement of the hearing that the Tribunal’s task is to consider whether the original decision was the correct and preferable decision and then make its own determination.

5. The hearing was held on 10 February 2017 by telephone.  The Applicant was represented by her husband, Mr Michael Clayton, who made submissions and gave affirmed evidence.  He was cross-examined by the representative of the Respondent, Mr Cameron Munro. The Tribunal notes that it is a matter for an Applicant as to how he or she chooses to put his or her case before the Tribunal within the framework of the Administrative AppealsTribunal Act 1975 (AAT Act).  Mr Clayton stated that the Applicant was too unwell to give evidence.  The Tribunal however notes that first-hand evidence from Mrs Watkins about her medical conditions and the effects it has on her daily activities and ability to work would have been useful to the Tribunal.

6. The Respondent tendered documents lodged under section 37 of the AAT Act (‘T’ documents), which were admitted into evidence.

   Qualification for DSP under the Act

7. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

8. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –

   (a)a physical, psychiatric or intellectual impairment and

   (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

   (c)a continuing inability to work.

9. The Impairment Tables referred to in section 94(1) (b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

10. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

11. So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act.  Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables.  Thirdly, the person must have a continuing inability to work.

12. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment under section 94(3B).  If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

13. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)  the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    MATTER TO DECIDE

14. Was Mrs Watkins qualified for DSP on the date after the day she lodged her claim, 10 September 2015? If not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, did Mrs Watkins become qualified on a day in the thirteen week period after the day she lodged her claim, a period which ended on 10 December 2015? This is called the claim period.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

15. The Tribunal had before it a medical report dated 14 June 2013 from Dr Chui Chui Leong.  Dr Leong is Mrs Watkins’ general practitioner.  In that medical report Dr Leong cited cervical myelopathy as the condition with the most impact on the Applicant’s daily life.  She records a confirmed diagnosis of this condition by Mr Ales Aliashkevich, neurosurgeon, in 2012 and that Mrs Watkins had undergone a decompressive laminectomy in November 2012.

16. Dr Leong lists one other condition of Mrs Watkins in this report which is recorded as being generally well managed and causing minimal or limited impact, namely hypertension.

17. Separately, the Job Capacity Assessment Report (JCA) dated 19 October 2015 records depression as a condition suffered by Mrs Watkins, who told the Assessor she had been counselled over the previous eighteen months by a clinical psychologist named ‘Shelley Spark’.  The Tribunal could not find any person with this name recorded on the Australian Health Practitioner Regulation Agency website and when queried in the hearing, Mr Clayton was unfamiliar with the name.  There is separate evidence that Mrs Watkins had seen Ms Shelley Cameron, a clinical psychologist.  Dr Christopher Minogue, a physician employed by the Department who reviewed the medical evidence relating to the Applicant’s claim, spoke to Ms Cameron on 1 September 2016 and she confirmed that Mrs Watkins had attended ten psychotherapy sessions from February to October 2015 and thought the Applicant may also have attended as her patient in the past for treatment of depression and anxiety.

18. The Tribunal also had before it a radiological report by Dr Tony French dated 3 July 2013 of a thyroid ultrasound, which concluded that the appearances are in keeping with multinodular goitre. 

19. On the basis of the various medical reports before me relevant to the claim period, I find that Mrs Watkins did satisfy section 94(1)(a) in the claim period by having impairment from several conditions, namely a spinal condition, hypertension, a thyroid condition and a depressive condition, at that time.

    What is the correct rating under the Impairment Tables?

20. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

21. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

22. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

23. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

24. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

25. The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.

26. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    Spinal condition

27. Dr Leong in her medical report of 14 June 2013 in connexion with Mrs Watkins’ claim cites cervical myelopathy as the condition with the most impact on the Applicant.  Dr Leong gives a date of onset as ‘2009’ and said that the diagnosis is confirmed by specialist opinion, namely a diagnosis dated 13 August 2012 by Mr Ales Alaishkevich, neurosurgeon.

28. Dr Leong states that Mrs Watkins underwent a C3-C6 decompressive laminectomy on 2 November 2012.  She records a referral of Mrs Watkins to Dr Bradrakant Kavar, neurosurgeon, on 29 August 2012.  Dr Leong said that the Applicant experiences:

    ‘constant pain on her neck and therefore unable to get around doing her work.  She is awaiting pain management appointment.’

29. Mrs Watkins underwent a face to face JCA on 13 October 2015.  She told the JCA that she had severe and persistent pain in her neck and both her upper arms and that she had stopped driving because of her restricted range of arm and neck movement.  She reported that she could not raise her arms above neck height and cannot lift more than a 2 litre carton of milk.  The assessor noted that Mrs Watkins remained seated for the 40 minutes it took to undergo the JCA but adjusted her position and she reported she was in chronic pain.

30. The JCA noted Dr Leong’s advice in a medical letter of 23 August 2013 that Mrs Watkins has reported persistent pain and has a reduced range of movement.

31. The Tribunal also had before it a radiological report from Dr Tony French dated 18 June 2013 which concluded:

    Multifocal disc degenerative changes.  The laminectomy decompresses canal in the vicinity of dorsal disc protrusion at C3-6.  There are substantial exit forminal stenosis bilaterally which may be of relevance.

32. Because Mrs Watkins did not participate in the hearing, the Tribunal was unable to get any first-hand evidence from her about how her spinal condition affected her daily life.  Mr Clayton did give evidence.  He said his wife was able to do light dusting and although she likes to cook she was physically unable to and he does the cooking and washing up.  He said she can start washing but was unable to lift wet washing from the machine and could not put it on the line.  He said that Mrs Watkins would watch television but experienced discomfort after about 30 to 45 minutes when sitting in one position.

33. Mr Clayton said that, because of her restricted movement, Mrs Watkins had put on weight.  He estimated a weight change from an initial 7 to around 9 stone, which he said was significant because she is of a slight build.  He gave evidence that Dr Leong had “kept” recommending to her that Mrs Watkins should see a pain management specialist but that the Applicant “did not feel it would help her.”

34. The Respondent submitted that pain management may be a useful treatment for Mrs Watkins and that this form of treatment had been recommended for at least the last four years but there was no evidence that the Applicant had followed this suggestion of her treating general practitioner.

35. Dr Minogue was asked by the Respondent to review the medical reports before this hearing.  He contacted Dr Leong to discuss her patient and reported that Dr Leong said that the cervical myelopathy had “probably resolved and [she] thinks the persisting pain is due to cervical degenerative disease.”

36. Dr Leong concluded to Dr Minogue that the cervical spine condition was not fully stabilised in the claim period because some benefit may result from specialist pain management.

37. I note, although the specific diagnosis of Mrs Watkins’ spinal condition has changed, the Respondent (rightly in my view) accepts that she suffered from cervical degenerative disease and that the condition was fully diagnosed in the claim period.

38. Mr Clayton’s own evidence at the hearing that Dr Leong had persistently recommended specialist pain management is important.  As is Dr Leong’s apparent advice to Dr Minogue that in her view Mrs Watkins would benefit from this specialist intervention. 

39. I am sympathetic to the fact that, as Dr Leong told Dr Minogue, the waiting period to see a pain specialist at a public hospital is a minimum of three months.  However, the Applicant’s husband himself said that her general practitioner “kept recommending” this avenue of treatment and she therefore could have seen such a specialist before or during the relevant period.

40. Sections 6(5) and 6(6) of the Impairment Tables Determination sets out how to decide whether a medical condition is “fully treated” and “fully stabilised”.  A decision-maker is required to consider whether treatment is continuing or planned in the next 2 years and whether a person has undertaken reasonable treatment for a condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling a person to undertake work in the next 2 years. The Tribunal is also to consider if the person has not undertaken reasonable treatment and significant functional improvement in the next 2 years is not expected, even if reasonable treatment is undertaken, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

41. Mr Clayton said Mrs Watkins did not feel pain management would help her.  That may turn out to be the case, but when a person’s medical adviser recommends reasonable treatment, a person’s own assessment of the efficacy of that recommended treatment is not sufficient reason, in my view, for that advice not to be followed. 

42. I was unable to probe Mrs Watkins on why she chose not to pursue this advice to see a pain specialist – advice that has been consistent and persistent.  It may be that significant functional improvement in 2 years may not be possible, or that a pain specialist can make a professional assessment about how much, or whether, the Applicant’s pain can be alleviated.  But this is just hypothesis, because recommended treatment had not been taken up in the claim period – and, on Mr Clayton’s evidence, had still not been taken up at the date of this hearing.

43. On the evidence at the hearing from the Applicant’s husband and the other reported evidence from Dr Leong, the Tribunal finds that Mrs Watkins’ spinal condition in the claim period while fully diagnosed was not fully treated or fully stabilised because reasonable treatment had been declined, and so the condition cannot be regarded as ‘permanent’ within the meaning in the Determination and therefore assigned impairment points.

    Hypertension

44. In her June 2013 medical report, Dr Leong recorded Mrs Watkins’ hypertension as a condition which causes minimal or limited impact on her daily life.  Dr Leong also described the hypertension as “well controlled now” in her medical letter of 29 June 2016. 

45. The Tribunal finds that Mrs’ Watkins’ hypertension is a permanent condition in terms of the Determination but under section 11(5) of the Determination, the Tribunal finds that this condition has no functional impact and assigns a zero rating for it.

    Thyroid condition

46. The Tribunal had before it a radiological report from Dr Tony French dated 3 July 2013 of a thyroid ultrasound.  It recorded a conclusion that Mrs Watkins had multinodular goitre.

47. Dr Leong said this condition was “well controlled” in her medical letter of 29 June 2016 and also told Dr Minogue that Mrs Watkins’ thyroid condition has no functional impact.  In his evidence, Mr Clayton did not suggest this condition by itself had a significant functional affect. 

48. The Tribunal notes it had before it a letter to Mrs Watkins from Western Health dated 24 July 2015 confirming her appointment at the Endocrinology Clinic at Sunshine Hospital on 23 October 2015 and a similar letter dated 13 August 2015 confirming her appointment at the Ear, Nose and Threat Clinic at Footscray Hospital on 12 November 2015.  The Tribunal did not have information on the outcome of those appointments.

49. The Tribunal finds that, on balance, the Applicant’s goitre condition was a permanent condition in the claim period but under section 11(5) of the Determination, the Tribunal finds that the condition did not cause any functional impairment and should be assigned zero impairment points.

    Depressive condition

50. As mentioned above, there was some confusion during the hearing about a person Mrs Watkins consulted in relation to her mental health condition who was described by both the JCA and the Respondent as ‘clinical psychologist Shelley Spark’.  There is no person with that name recorded on the Australian Health Practitioner Regulation Agency website, which is the database listing, among others, registered psychologists practising in Australia.  The Tribunal also queried the requisite qualifications of Ms Shelley Cameron who was described in papers before the hearing as a clinical psychologist.  After the hearing the Respondent made a submission to the Tribunal that Ms Cameron is a general psychologist with an endorsement to practise in the area of clinical psychology.  This is important because the Introduction to Table 5 – Mental Health Function, requires that, for the assessment of a mental health condition or conditions under the Determination, the condition must have a diagnosis by a psychiatrist or a clinical psychologist. 

51. The Tribunal finds that Ms Cameron is in the category of persons qualified under the Determination to provide a diagnosis of a mental health condition assessable under Table 5, and considered Mrs Watkins’ depressive condition on that basis.

52. Dr Leong gave a date of onset of Mrs Watkins’ condition of “depression – major” of February 2015.  She said that Mrs Watkins’ mood was constantly low and she had no interest in daily life She was unable to concentrate on more difficult chores but was able to concentrate on basic daily chores.  Dr Leong said that Mrs Watkins does not like to socialise and prefers to be alone in her house.  Dr Leong also said that this mental health condition affected Mrs Watkins’ appetite, sleep patterns and daily enjoyment of life.

1. Mr Clayton told the Tribunal about a number of grief episodes that had had a major effect on Mrs Watkins mental state. There was other medical evidence of how profoundly she had been affected by grief.  The JCA initially recommended that the Applicant’s mental health condition could not be assigned impairment rating because it was not fully treated or stabilised.  The ARO, after making contact with Ms Cameron, decided that this condition was ‘permanent’ in the terms required by the Determination and assigned 5 impairment points for it.  AAT1 came to the same conclusion as the ARO and also assigned 5 impairment points. 

2. When Dr Minogue contacted Dr Leong, he reports that her opinion is that Mrs Watkins’ psychological condition was not fully treated and stabilised during the claim period due to adjustment in medication.  Ms Cameron also told Dr Minogue that there was a ‘probable need for more psychotherapy’.

3. However, Ms Cameron previously told the ARO that she had held ten psychotherapy sessions with Mrs Watkins over the preceding two years and “she did not feel there would be significant functional improvement within the next 2 years.  Medication may change but functional impact will not.”

4. The Tribunal must look at what was the situation in the claim period.  Without for a moment suggesting that Dr Minogue has not correctly reported what Dr Leong and Ms Cameron said to him, Dr Leong is not in a category of persons required to diagnose a mental health condition under the Determination; Ms Cameron is, and had a different professional view, as set out above, in the thirteen week period. 

5. The Tribunal is aware that people with long-standing psychological conditions need to adjust their treatment.  This, by itself, is not necessarily conclusive, in my mind, to render a condition ‘not fully treated and fully stabilised’ in terms of the Determination.  People sometimes have side-effects from medication and sometimes their medical advisers recommend new or different drugs to better treat them.  Ms Cameron’s professional opinion to the ARO, recorded in a comprehensive file note dated 23 November 2015 led the ARO to conclude an assignment of 10 impairment points was warranted at that time.  I conclude that this opinion of Ms Cameron, given within the claim period, is to be preferred over her later discussion with Dr Minogue. 

6. It would be unfair of the Tribunal to restrict an Applicant to a ‘snap shot’ of what their health conditions were within the claim period, but then accept arguments from the Respondent about subsequent changes of opinion well after that period that might be detrimental to a claim.

7. I therefore find that the Applicant’s mental health condition was permanent within the requirements of the Determination in the claim period.

8. The next step is for the Tribunal to decide what is the correct assignment of impairment points.  It is always preferable to have first-hand evidence of the effect on a person of a medical condition, but in the absence of that, and on the basis of the evidence of Mr Clayton and Ms Cameron’s earlier assessments about the daily functional impact of this condition on Mrs Watkins, and carefully reading notes of the ARO who had the benefit of a discussion with Ms Cameron to tease out her professional conclusions, I find that the Descriptors in Table 5 for a ‘moderate’ functional impact were met at the time of the claim.

9. The Tribunal therefore finds that Mrs Watkins should be assigned 10 impairment points for her depression.

   Conclusion

10. The Applicant is assigned a total of 10 impairment points for her medical conditions in the claim period. Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time she made her claim or in the 13 weeks thereafter. Consequently, Mrs Watkins did not meet the requirements of section 94(1)(b) at that time, so this application for DSP cannot succeed.

11. As section 94 is conjunctive (meaning that a person claiming DSP must meet each part of the section) and Mrs Watkins did not meet section 94(1)(b) in the 13 week period starting on 10 September 2015 and ending on 10 December 2015, it is not necessary for me to go on to consider whether she had satisfied the requirements of section 94(1)(c) of the Act in regard to a continuing inability to work.

12. I know this will be a disappointing outcome for Mrs Watkins.  During the hearing Mr Clayton, who represented the Applicant, said he had not read the documents relating to the hearing, and that he and the Applicant received a lot of correspondence from Centrelink that “he did not have time to read.”  Accepting that Mrs Watkins without doubt has significant health challenges, if she decides to lodge a fresh claim for DSP, it is in her interests to amass whatever contemporary medical evidence is available to put before the Department in support of any such new claim.

    DECISION

13. The decision under review is affirmed.

66.     I certify that the preceding 65 (sixty‑five) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.

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Associate

Dated 24 March 2017

Date of hearing	16 November 2016
Applicant	Did not appear
Advocate for Applicant	Michael Clayton
Advocate for Respondent	Secretary, Department of Social Services, Mr Cameron Munro