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

[2016] AATA 960

Whitehead and Secretary, Department of Social Services (Social services second review) [2016] AATA 960 (29 November 2016) 

Division	GENERAL DIVISION
File Number	2016/1333
Re	Paul Whitehead
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	29 November 2016
Place	Canberra

The Decision under review is affirmed.

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

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – impairments – rating of ‘permanent’ impairments – 20 point minimum threshold not met - continuing inability to work 15 or more hours per week not satisfied – requirement for active participation in a program of support not met – decision affirmed

LEGISLATION

Social Security Act 1991, ss 26, 94

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Mr S. Webb, Member

29 November 2016

1. Paul Whitehead suffers from a number of medical conditions that affect his capacity to work. He claimed Disability Support Pension (DSP). His claim was rejected.[1] That decision has been affirmed by successive decision makers on review.[2] Mr Whitehead has applied for further review.[3]

   [1] T9.

   [2] T2.

   [3] T1.

   Issues

2. In order to determine whether or not the DSP claim Mr Whitehead lodged on 21 July 2015 (claim date) can be granted, it is necessary to decide if he satisfies the qualification requirements set out in s 94 of the Social Security Act 1991 (the Act). Essentially, it must be established that –

   (a)Mr Whitehead has a physical, intellectual or psychiatric impairment;

   (b)the impairment or impairments attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination); and

   (c)Mr Whitehead has a continuing inability to work 15 or more hours per week.

3. In order to determine if Mr Whitehead has a continuing inability to work it is necessary to consider whether he has a ”severe impairment” for the purposes of s 94(3B). If he does not, under s 94(2)(aa), it is necessary then to decide if he “actively participated in a program of support” as defined by s 94(5), in satisfaction of the requirements set out in s 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Participation Determination).

4. In order for DSP to be payable under Mr Whitehead’s claim, it must be established that he qualified for DSP on the day he made the claim, or within 13 weeks thereafter (the qualification period).[4] The qualification period is therefore from 21 July 2015 to 21 October 2015. If it is not established by evidence that he satisfied the qualification requirements within the qualification period, DSP will not be payable and his claim will fail.

   [4] Social Security (Administration) Act 1999 (Cth), Schedule 2, cl 4(1).

5. I note that some of the materials before the Tribunal date from times outside the qualification period. It is appropriate to have regard to this material insofar as it bears upon the extent to which Mr Whitehead meets the qualification requirements during the qualification period, if at all.

   Impairment

6. The reports of Dr Anwar, Dr Tint San, Dr Igros, Dr Khalid, Dr Ashubabu – general practitioners, Dr Proctor and Dr Sachdev – psychiatrists, and Ms Blane-Brown – a clinical psychologist, establishes that Mr White suffers from the following medical conditions that impair his functional capacities –

   (a)Post chronic Q fever causing chronic fatigue, generalised arthralgia, headaches, myalgia, breathing difficulties and depression that impairs Mr Whitehead’s capability to perform activities requiring physical exertion and stamina, and his mental health;[5] and

   (b)Mental illness in the form of schizophrenia, paranoia, post-traumatic stress disorder, depression and anxiety-related disorders that impair his mental health function.[6]

   [5] See T6 and T7, for example.

   [6] See T6 and T10, for example.

7. This means Mr Whitehead satisfies the first qualification criterion in s 94(1)(a) of the Act.

8. There is some evidence in the clinical medical documents that Mr Whitehead has been diagnosed with gastro-oesophageal reflux disease and injuries to his lower limbs. The extent to which these conditions persisted and caused impairment during the qualification period is not presently established by probative evidence.

   Rating of impairments under Impairment Tables

9. In order to satisfy the second qualification criterion, Mr Whitehead’s impairments must attract a rating of 20 or more points under the Impairment Tables set out in the Impairment Determination.

10. Part 2 of the Impairment Determination sets out rules that must be applied – it is a legislative instrument and the rules have statutory force under s 26(3) of the Act.

11. The rules set out in s 6 of the Impairment Determination provide that a rating may only be assigned to an impairment that is likely to persist for more than two years where the underlying medical condition has been fully diagnosed, fully treated and fully stabilised, and is considered to be permanent.

12. Sections 10(5) and (6) of the Impairment Determination provide that –

    (5)       Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6)       Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.

    Impairment ratings

13. The first step is to determine which impairments result from “permanent” medical conditions and are likely to persist for more than two years from the qualification period.

    Post chronic Q fever

14. Mr Whitehead was afflicted by this condition in 2005. On the evidence of Dr Anwar and Dr Proctor it can be accepted that the condition is fully diagnosed, fully treated and fully stabilised, and the impairments – “He has classic symptoms and disability resulting from Q fever”, “he has developed typical severe fatigue, generalised arthralgia and myalgia”[7] – are likely to persist for more than two years from the claim date.

    [7] T7, folios 81 and 82.

15. On 2 September 2015, Dr Proctor reported that Mr Whitehead has “Severe limitation and aches and pains, severe fatigue, depression”.[8] Mr Whitehead explained that he experiences heat intolerance as well as headaches, difficulty breathing and lethargy.

    [8] Ibid, folio 82.

16. Mr Whitehead’s account of impairment resulting from post chronic Q fever is reported by a Job Capacity Assessor on 18 September 2015,[9] an Authorised Review Officer (ARO),[10] and this Tribunal of first instance.[11] His evidence in these proceedings is that on a good day he is able to walk with his dogs and from a car into shops, but he cannot walk 8 kilometres as reported by the ARO. He is able to do household chores if he pushes himself, but his son and daughter help out. He does no gardening as he does not have a garden.

    [9] T8, folio 91.

    [10] T13, folio 103.

    [11] T2, folio 6.

17. It is quite clear that Mr Whitehead suffers from impaired ability to perform activities requiring physical exertion and stamina. Impairment of this kind is to be assessed under Table 1 in Part 3 of the Impairment Determination.

18. Considering Mr Whitehead’s account of the functional impairments he experiences as a result of his post chronic Q fever and the corroborating evidence to which I have referred, I think a rating of 10 points under Table 1 is appropriate. While Dr Proctor refers to severe limitations, he does not record any details of particular limits or restrictions on Mr Whitehead’s functional capacity. The Job Capacity Assessor considered that a rating of 5 points was appropriate as the functional impact of the impairment was mild.

19. I am satisfied that Mr White experiences frequent symptoms of shortness of breath, fatigue and aches or numbness in various parts of his body when performing day to day activities and, as a result, he is not able to walk far outside his home. He relies on his son and daughter to drive him to shops and to assist him with household chores that he finds difficult. Nevertheless he is able to use transport and to walk around a shopping centre. The Job Capacity Assessor reported that he is “suited to light or sedentary activities” in employment.[12]

    [12] T8, folio 93.

20. I am satisfied that Mr Whitehead’s post chronic Q fever impairment, in the form of limited endurance, chronic fatigue or lethargy, heat intolerance and generalised aches or numbness, has a moderate functional impact of his ability to perform activities requiring physical exertion or stamina. This is consistent with a rating of 10 points under Table 1.

21. Mr Whitehead gave evidence about difficulties he experiences as a result of pain affecting his upper and lower limbs, and headaches.

22. Under s 6(9) of the Impairment Determination, the functional effect of pain is to be assessed under the relevant Tables.

23. Unfortunately, there is not sufficient evidence to enable me to properly consider pain-related impairment of Mr Whitehead’s upper limbs under Table 2 and his lower limbs under Table 3. Even though I accept his evidence that pain in his limbs affects his mobility, the present evidence does not establish the extent or the degree of such impairment during the qualification period. For this reason it is not possible to assign a rating greater than 0 points under Tables 2 and 3.

    Mental health impairment

24. The evidence of Dr Proctor and Dr Anwar establishes that Mr Whitehead suffered from mental illnesses affecting his functional capacity well before the qualification period - diagnoses of major depression, schizophrenia, paranoia and anxiety were made prior to 31 October 2014. On 5 December 2013, Dr Igros completed a Mental Health Treatment Plan with Mr Whitehead.[13] It appears that Dr Igros prescribed Prozac for Mr Whitehead’s depression.[14] On 18 March 2014, Dr Igros changed his medication to Efexor.[15] Mr Whitehead had difficulties tolerating Efexor, so he ceased taking it.[16] On 16 June 2014, Mr Whitehead commenced treatment with Cymbalta, prescribed by Dr Proctor.[17] He reacted badly to this, however.[18]

    [13] Exhibit 2, clinical note, 27 November 2013.

    [14] Ibid, clinical note, 17 February 2014.

    [15] Ibid, clinical note, 18 March 2014.

    [16] Ibid, clinical note, 28 April 2014, 19 May 2014.

    [17] Ibid, clinical note, 16 June 2014,

    [18] Ibid, clinical note, 7 July 2014.

25. On 31 October 2014, Dr Ashubabu prescribed Olanzapine for Mr Whitehead’s paranoid schizophrenia on advice from Dr Igros.[19] Mr Whitehead did not persist with this course of treatment.[20]

    [19] Ibid, clinical note, 31 October 2014.

    [20] Ibid, clinical note, 14 November 2014.

26. On 12 October 2015, Ms Claire Briggs, a case manager and registered nurse with the Albury Community Mental Health Service, reported to Dr Tint San that Mr Whitehead presented on 9 October 2015 and he “would greatly benefit from a referral for a mental health plan to commence seeing a private psychologist to begin CBT skills”.[21] It appears that Mr Whitehead was assessed by Dr Sachdev on 12 October 2015. Ms Briggs reported that Mr Whitehead presented with “mild persecutory ideation and experiencing auditory and visual hallucinations” and that Dr Sachdev commenced treatment with Risperidone.

    [21] Exhibit 2, letter by Claire Briggs, 12 October 2015.

27. On 16 October 2015, Ms Blane-Brown reported diagnoses of Post Traumatic Stress Disorder with secondary Obsessive Compulsive Disorder, social phobia and signs of psychosis, as well as “secondary anxiety and depression”.[22] Ms Blane-Brown proposed a treatment plan involving the use of cognitive behaviour therapy.

    [22] T10 folio 98.

28. In a further letter (incorrectly dated 12 October 2015), Ms Briggs reported to Dr Tint San that –

    Following a comprehensive assessment with Dr Jagdeep Sachdev on the 11^th November 2015 and commencing on Risperidone 2mg Nocte, [Mr Whitehead’s] condition has stabilised and he is no longer wishing to link with our service.

    I saw him on 6 January 2016 where he presented as polite and cooperative describing his mood as improved and denying any risk of harm to self or others. Denied perceptual disturbances and reported to feel overall better on the medication and experiencing less anxiety. [Mr Whitehead] continues to see private psychologist, Maureen Brown of which he is finding beneficial. He intends to renew his mental health plan for this year.[23]

    [23] Exhibit 2, letter by Claire Briggs, 12 October 2015.

29. From the dates included in the text of this letter, it is apparent that it was written well after the end of the qualification period, although its exact date is unclear.

30. As can be seen, Mr Whitehead obtained further treatment for his psychiatric disorders on and after 21 October 2015, after the qualification period. Fortunately, this treatment appears to have been beneficial and his mental health improved – his mental health impairments reduced with treatment.

31. From this it follows that I am unable to find that Mr Whitehead’s mental health conditions were fully treated and fully stabilised during the qualification period. It is quite clear that his mental health improved with psychological, psychiatric and pharmacological treatment thereafter.

32. It follows that the mental health conditions that resulted in Mr Whitehead’s mental health impairments cannot be considered as ”permanent” and his mental health impairments were not likely to persist for more than two years during the qualification period. For this reason, no rating can be assigned in respect of these impairments under Table 5.

    Impairment rating

33. The present evidence establishes that Mr Whitehead suffers from impairments that attract ratings totalling 10 points.

34. From this it follows that he does not meet the second essential criterion to qualify for DSP set out in s 94(1)(b) of the Act.

35. For this reason his DSP claim cannot succeed and the decision under review must be affirmed.

    Continuing inability to work

36. It is not necessary to proceed further in order to determine whether Mr Whitehead meets the third essential criterion in s 94(1)(c) of the Act.

37. It is appropriate to observe, however, that as Mr Whitehead does not have a ‘severe impairment’ within the terms of s 94(3B), it must be established that he meets the requirements of s 94(2), including that he is unable to work 15 or more hours per week and that he actively participated in a program of support under the Participation Direction. On the present materials, satisfaction of these requirements is not made out.

    Decision

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 29 November 2016

Date of hearing	24 October 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services