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

[2015] AATA 788

Watsford and Secretary, Department of Social Services (Social services second review) [2015] AATA 788 (9 October 2015)

Division	GENERAL DIVISION
File Number	2014/5582
Re	James Watsford
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S Webb, Member
Date	9 October 2015
Place	Sydney

The decision under review is affirmed.

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

Mr S Webb, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – qualification period for payment progressive disease – whether applicant’s conditions were fully diagnosed, treated and stabilised during the claim period – whether Applicant’s impairments rated 20 points or more under the Impairment Tables - multiple conditions not diagnosed, treated and stabilised at time of claim – requirement for 20 impairment points not met – decision affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 ss 41, 42, Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Webb, Member

9 October 2015

1. James Watsford is an arborist. He suffers from Addison’s disease and a number of other ailments and conditions. These conditions affected his ability to work. He claimed Disability Support Pension (DSP). Centrelink rejected his claim. He applied for review, but the rejection decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal (SSAT). Mr Watsford applied for review by this Tribunal.

   BRIEF FACTS

2. Mr Watsford is 39 years old. He is a qualified arborist.

3. In 2003, he was diagnosed with Addison’s disease. He was prescribed steroidal treatment. As this is a progressive disease, his condition is reviewed, periodically, by his treating doctors. On 27 March 2013, Associate Professor Clifton-Bligh reported that Mr Watsford “manage[s] his Addison’s disease reasonably well. He is on adequate steroid replacement. His markedly elevated ACTH level has been chronic and I do see this phenomenon from time to time in otherwise well controlled Addison’s disease.”[1]

   [1] T7 folio 84.

4. In 2012, Mr Watsford was diagnosed with depression.[2] Dr Soper, a general practitioner, prescribed Avanza, an antidepressant medication. By Mr Watsford’s own account he stopped taking this medication soon thereafter.

   [2] T5 folio 82.

5. In 2013 he contacted Centrelink about making a claim for DSP. But I have seen no evidence that he did so at that time.

6. On 14 May 2014, Dr Jesudason, treating psychiatrist, reported that Mr Watsford presented with “[c]hronic unremitting fatigue” and “In the context of his debilitating and deteriorating physical state and chronic pain syndrome his depression has escalated in the past four years”.[3] The Doctor reported that Mr Watsford “is [not] fit for any gainful employment” and prescribed Amitriptyline, an antidepressant medication. Mr Watsford told me that he stopped taking this medication soon thereafter.

   [3] T11 folio 110.

7. On 27 May 2014, Mr Watsford lodged a claim for DSP.[4] At the time, he was living alone in Taree.

   [4] T12.

8. On 2 July 2014 a Job Capacity Assessment was completed by an occupational therapist. The Assessment was that Mr Watsford did not meet the qualification requirements for DSP.[5]

   [5] T15.

9. On 4 July 2014, Centrelink decided to reject his DSP claim.[6] Mr Watsford sought a review.

   [6] T16.

10. On 14 August 2014, an Authorised Review Officer decided to affirm the original decision to reject Mr Watsford’s DSP claim.[7] Mr Watsford applied for review by the SSAT.

    [7] T17 and T18.

11. On 9 October 2014, the SSAT decided to affirm the decision to reject Mr Watsford’s DSP claim.[8]

    [8] T2.

12. On 22 October 2014, he applied to this Tribunal for review.

13. At hearing, Mr Watsford was under the misapprehension that the Tribunal would treat his DSP claim as a new claim and determine his eligibility for DSP presently. He expected that medical documents he provided to Centrelink recently would be taken into account. I was provided with copies of these documents. I explained to Mr Watsford that I would take them into consideration, but only insofar as they are relevant to assessment of his May 2014 DSP claim.

14. It is important to note that for DSP to be payable, an Applicant must qualify for the Pension on the day the claim is made or within 13 weeks thereafter – the qualification period in respect of a claim. This is the effect of the commencement of payment and the ‘start day’ rules set out in ss 41 and 42, and clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).

15. As Mr Watsford made his DSP claim on 27 May 2014, the qualification period ends on 26 August 2014. It is in this period that he must meet all of the statutory tests to qualify for DSP. If he does not, DSP is not payable and his claim will fail.

16. It is unfortunately common in cases such as this for applicants, at hearing, to be confused by or ignorant of these provisions. In so many cases, applicants seek to rely on medical assessments of conditions that had not been diagnosed or treated when the claim was made, or that have been diagnosed, treated and stabilised well after the particular claim qualification period has expired. While in some cases (and this is one) materials of this kind may shed light on the medical basis for otherwise unexplained symptoms or functional impairments at the time of claim, it does not follow, and it should not be assumed, that such materials will support the claimant’s case in respect of the particular claim for DSP. The Tribunal’s assessment must be made in respect of the qualification period for the claim. If the statutory tests to qualify for DSP are not met during that period, the Tribunal is bound to reject the claim. That is so even though, on the same evidence, the person might meet those tests at a later time and DSP may be granted if a fresh claim was made. To my mind, applicants would be assisted, and greater systemic efficiency may be obtained, if clear information about these matters could be provided in plain language that can readily be understood at an early stage.

    ISSUES

17. Mr Watsford’s DSP claim is to be determined under the Social Security Act 1991 (the SS Act). The qualification criteria are set out in s 94(1). Three key criteria require detailed consideration to address Mr Watsford’s claim –

    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;

    …

18. As I have said, for DSP to be payable to Mr Watsford, each of these qualification criteria must be satisfied within the qualification period commencing on 27 May 2014 and ending on 26 August 2014.

    PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT

19. The evidence of Dr Jesudason clearly establishes that Mr Watsford suffered from physical and psychiatric impairments, including chronic fatigue, chronic pain and depression, that affected his ability to function when he lodged the claim for DSP on 27 May 2014.

20. This means that Mr Watsford meets the first qualification criterion set out in s 94(1)(a) of the SS Act.

    IMPAIRMENT OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES

21. In order to address the second criterion set out in s 94(1)(b), it is necessary to apply the Impairment Tables. These are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

22. The Determination is a legislative instrument that must be construed with regard to the objects and purposes of the SS Act. The rules set out in Part 2 of the Determination are not discretionary – these must be applied when applying the Impairment Tables in Part 3. The rating of impairment is to be made with reference to the DSP claim qualification period.

23. Rule 6(3) provides that an impairment rating can only be assigned if the person’s condition causing the impairment is permanent and the impairment is more likely than not to persist for more than two years. Under rule 6(4) a condition is permanent if each of the four preconditioning criteria are made out – the condition has been fully diagnosed by an ‘appropriately qualified medical practitioner’, being a medical practitioner with qualifications and practice relevant to diagnosing a particular condition; it has been fully treated (rule 6(5) applies); it has been fully stabilised (rule 6(6) applies); and it is likely to persist for more than two years. If one or more of these criteria are not satisfied with reference to the DSP claim qualification period, the condition will not be treated as ‘permanent’ and any impairment caused by the condition cannot be assigned a rating under the Impairment Tables.

24. Mr Watsford told me that he suffers from several conditions, some of which have only recently been properly diagnosed, including Addison’s disease, depression, rheumatoid arthritis, osteoarthritis, a bulging lumbar disc, a torn right shoulder and a knee problem.  In his submission, all of these conditions should be taken into account when assessing his claim for DSP.

25. In his DSP claim, Mr Watsford referred to arthritis, lower back pain, Addison’s disease and depression.[9]

    [9] T11 folio 126.

26. On 17 June 2014, Dr Abdille, a general practitioner, reported that Mr Watsford suffered from Addison’s disease and depression, causing tiredness, depressed mood and fatigue.[10]

    [10] T13 folios 144 and 146.

27. On 26 June 2014, Dr Jesudason reported that the conditions having a significant impact on his ability to function were chronic recurrent major depressive disorder with anxiety, Chronic Pain syndrome and Addison’s disease.[11]

    [11] T14 folio 155.

28. I note that on 9 April 2013, Dr Sopar referred to nocturnal enuresis, urge incontinence and alcoholism,[12] and that on 13 December 2013, Dr Kuzman, a general practitioner, attributed chronic tiredness, sexual dysfunction and incontinence to Addison’s disease.[13]

    [12] T8 folio 95.

    [13] T10 folio 103.

    Addison’s disease

29. Mr Watsford was diagnosed with Addison’s disease in 2003. It is a progressive disease that has been managed with pharmacological treatment and periodic medical review by Dr Clifton-Bligh, for example.

30. I am reasonably satisfied that the condition is diagnosed, fully treated and fully stabilised for the purposes of rules 6(3), (4) and (5), and that it is likely to persist for more than two years.

31. The functional impairment caused by Mr Watsford’s Addison’s disease is chronic lethargy, lack of energy and low capacity for physical exertion and stamina. He told me that his mind was also affected – he would lose concentration or focus.

32. Mr Watsford’s evidence is that the degree of impairment has worsened since he lodged the claim for DSP in May 2014. At that time he said that he was able to walk further, when shopping and walking his dogs, than he can presently, and he was able to do more around the house then he can now, although he was not able to sustain employment as an arborist. He told me that he found it increasingly difficult to look after himself, living alone in Taree, so he moved back to live with his parents in Sydney. His evidence is that, presently, he is able to walk his dogs for half an hour each morning and to help his mother with shopping and household chores. He also helps his mother care for his father, who suffers from Pick’s disease. He told me that he confines such activities to the mornings as by the middle of the day he is exhausted. He said that he used to go out at night, on a Saturday evening for example, including while he was residing at Taree, but now he cannot do so as he is too tired and retires to bed at around 7.30pm.

33. His evidence is that he can use public transport without assistance, to travel to the city for example, but he rarely does so. Previously, he could use public transport to travel to other places, such as Manly or Bondi, but he does not do that now as he has no reason to do so as he is too tired to go out at night. Mr Watsford told me that he is able to drive, but now limits this to 10 or 15 minutes because doing so causes pain.

34. When asked whether he would be capable of undertaking sedentary work activities, he told me that he would find this difficult because he loses concentration.

35. Considering the scaled indicia for mild, moderate and severe functional impact ratings at the 5, 10 and 20 point levels in Table 1 – Functions requiring Physical Exertion and Stamina, I am satisfied that Mr Watsford’s impairment is consistent with a moderate impact, attracting a rating of 10 points. His own evidence is not consistent with the tests for a severe functional impact at the 20 point level.

36. There is insufficient evidence for me to assign a rating for urge incontinence, sexual dysfunction or nocturnal enuresis. These conditions or symptoms are only briefly referred to by Dr Sopar and Dr Kuzman more than five months before Mr Watsford lodged his claim for DSP. I am not satisfied that these conditions, if they are separate conditions rather than symptoms of Addison’s disease, were diagnosed, fully treated and fully stabilised during the qualification period for his DSP claim in May 2014.

    Depression and anxiety

37. Mr Watsford’s depressive disorder was diagnosed in 2012. By his own account, he did not persist with the Avanza treatment prescribed at that time by Dr Sopar. Mr Watsford told me that he suffered side effects from this medication and it clashed with the medication he is required to take for his Addison’s disease. There is no medical evidence to support this contention. He told me that, for the same reason, he did not take the Amitriptyline prescribed by Dr Jesudason in May 2014 when she diagnosed a major depressive disorder.

38. On 13 December 2013, Dr Kuzman, a general practitioner, reported that Mr Watsford suffered from depression – “No medication but CBT with psychologist app 10/01/14”.[14] Mr Watsford told me that he may have attended one session with a psychologist, but he preferred to treat his depression himself, with meditation. When asked whether this form of treatment was recommended or approved by his treating doctors, Mr Watsford told me that it may not have been, but it was a treatment that worked for him. His evidence is that his depression is much better now than it was in 2014, when he was suicidal for a time.

    [14] T10 folio 105.

39. On the evidence of Dr Kuzman, Dr Abdille and Dr Jesudason, I am satisfied that antidepressant medication and psychological therapy was reasonable medical treatment for his depressive disorder, and that such treatment would more likely than not have resulted in an improvement of  this condition and a significant functional improvement of his psychological impairment within two years. For this reason I am reasonably satisfied that Mr Watsford’s depression and anxiety condition was not fully treated or fully stabilised during the qualification period for his DSP claim in May 2014.

40. It follows that the psychological impairment caused by this condition cannot be assigned a rating under Table 5.

    Chronic pain syndrome, rheumatoid arthritis, osteoarthritis, bulging lumbar disc, torn right shoulder and a knee problem

41. Mr Watsford’s evidence is that he has suffered from pain in various parts of his body for some years. He told me that he has osteoarthritis throughout his body and rheumatoid arthritis in his blood.

42. While it is probable that Mr Watsford has experienced pain from time to time in various parts of his body, perhaps as a result of his Addison’s disease or other causes, there are but few references to pain symptoms or causes in his medical records during or prior to the qualification period for his DSP claim in May 2014.[15]

    [15] See Dr Kuzman’s report at T10 folio 104; Dr Jesudason’s report at T14 folio 156

43. On 14 May 2014, Dr Jesudason described a chronic pain syndrome, but she did not indicate any particular treatment to manage or stabilise this condition.

44. At hearing, Mr Watsford referred to new medical reports and certificates he provided to Centrelink. Medical certificates dated 19 September 2014,[16] 19 November 2014,[17] 24 June 2015,[18] 17 March 2015[19] and 31 July 2015[20] demonstrate that he has a bulging disc in his lumbar spine at L5/S1 and bursitis with a supraspinatus tear in his right shoulder. These conditions were not previously diagnosed. With regard to the qualification period for Mr Watsford’s DSP claim in May 2014, these conditions were not diagnosed, fully treated or fully stabilised. For this reason, they cannot be assigned a rating under the Impairment Tables.

    [16] Exhibit 7

    [17] Exhibit 7

    [18] Exhibit 4.

    [19]Exhibit 2 .

    [20] Exhibit 5.

45. In a report dated 1 June 2015, Dr Bertouch, a consultant rheumatologist, refers to “widespread joint pain”, including low back pain, bilateral shoulder pain, pain in the thumbs of both hands and left knee pain.[21] The Doctor reported evidence of osteoarthritis in Mr Watsford’s fingers, thumbs, feet, shoulders and back. Dr Bertouch also reported investigations showing a positive rheumatoid factor and positive CCP antibodies. Liver function tests were said to be significantly better than those reported in 2014. It is Dr Bertouch’s opinion that –

    “[Mr Watsford’s] condition will continue to deteriorate with increasing joint symptoms over time. It is very likely he will require disease suppressant treatment at a future date and will also require pain management for adequate control of symptoms.”[22]

    [21] Exhibit 1, page 1.

    [22] Ibid, page 2.

46. Mr Watsford told me that he has an appointment in the near future to attend the Pain Clinic at the Royal North Shore Hospital, as recommended by Dr Bertouch.

47. These materials shed some further light on the nature and causes of the chronic pain syndrome Dr Jesudason reported in May 2014.

48. It is quite clear that Mr Watsford’s chronic pain symptomatology is multifactorial and it had not been thoroughly investigated, diagnosed, treated or stabilised when he claimed DSP in May 2014 or within the qualification period thereafter.

49. For this reason, I am unable to assign a rating to his osteoarthritis, rheumatoid arthritis and other recently diagnosed pain-related conditions.

    Total points assigned

50. Considering all of Mr Watsford’s conditions and the impairments they cause with reference to the qualification period for his May 2014 DSP claim, he has a total of 10 points under Table 1. His other conditions and impairments are not capable of being assigned a rating as they were not diagnosed or fully treated and fully stabilised during the qualification period.

51. This means that Mr Watsford does not satisfy the second criterion to qualify for DSP under s 94(1)(b).

52. That being so, his claim must fail and the decision under review must be affirmed.

53. It is not necessary to proceed to determine whether Mr Watsford has a continuing inability to work. I simply note that, as Mr Watsford does not have a ‘severe impairment’ within the terms of s 94(3), he would need to satisfy the program of support participation tests during the qualification period. On the materials I have seen, he does not meet this requirement and would, therefore, not meet the third criterion for grant of DSP pursuant to his May 2014 claim.

    DECISION

54. The decision under review is affirmed.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 9 October 2015

Date of hearing	27 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services