WILSON And SECRETARY,DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

[2006] AATA 638

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/1142

GENERAL  ADMINISTRATIVE DIVISION

Re:         RITA WILSON

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Dr P.D. Fricker, Member

Date:             20 July 2006

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and in substitution finds that the applicant has a continuing inability to work within the meaning of s 94(1)(c) of the Social Security Act 1991 and has done so since 23 May 2005.

(sgd) Patricia D. Fricker

Member

SOCIAL SECURITY ‑ disability support pension ‑ depression, hearing impairment ‑ whether permanent at date of claim or within 13 weeks ‑ continuing inability to work.

Social Security Act 1991 s 94(1), Schedule 1B

Social Security (Administration) Act 1999 Schedule 2 s 4

Re Muir and Secretary, Department Of Employment and Workplace Relations [2005] AATA 902

REASONS FOR DECISION

20 July 2006  Dr P.D. Fricker, Member

1.      This is an application by Rita Wilson (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 23 November 2005.  The SSAT affirmed a decision of an authorised review officer (ARO) of Centrelink dated 6 June 2005 not to pay the applicant disability support pension (DSP).

2.      At the hearing on 6 June 2006 Mrs Wilson represented herself.  She was accompanied by her son-in-law, David Griffiths who addressed the Tribunal. Ms J Hume, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T29) together with documents tendered by the applicant (Exhibits A1‑A4) and the respondent (Exhibits R1‑R2).

BACKGROUND

4.      Mrs Wilson was born in December 1950.  She completed her education to Year 9 at the age of 16.  She migrated from the United Kingdom to Australia in 1962.  She worked as a sewing machinist but has not been in the paid work force for the past 29 years.  For many years she, in the company of her husband, cared for their intellectually disabled son.  In May 2004 (T3, p23) her husband died; after which time she experienced increasing difficulty coping with her son's behaviour.  He was placed in a residential care facility in April 2005.

5.      On 23 May 2005, Mrs Wilson lodged a claim for DSP.  On the Medical Details form that she signed on 2 May 2005 (T4, pp25‑27) she listed her disabilities as 80 per cent deaf, suffering depression, anxiety, nervous breakdown and asthma.  She indicated that she experienced difficulties all of the time interacting with others, attending work or other appointments and sleeping and often, with hearing, concentrating and remembering.  She was unsure when she would be able to participate in part‑time, full‑time or voluntary work, education, rehabilitation or vocational training.

6.      Dr S S K Wong completed a Treating Doctor's Report on 19 May 2005 (T5) and listed depression as Condition 1.  Dr Wong expected the then current impact of depression on Mrs Wilson's ability to function to persist for more than 24 months.

7. Mrs Wilson was assessed, on behalf of the respondent, by Health Services Australia (HSA) on 31 May 2005. The Medical Assessor, Dr Cheung, determined that Mrs Wilson was temporarily unfit for all work for 6 to 12 months and that her condition was likely to respond to conservative measures such as counselling and support. Dr Cheung did not allocate any permanent impairment points under Schedule 1B — Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Tables) of the Social Security Act 1991 (the Act) for depression. Dr Cheung gave Mrs Wilson’s other diagnosed condition, asthma, a permanent impairment rating of 5 points based on symptoms at 6-7 METs. Dr Cheung identified depression as the priority one barrier to Mrs Wilson's ability to participate in economic and social activities and indicated that she needed formal therapy for this.

8.      Centrelink, acting for the respondent, rejected Mrs Wilson's claim on 6 June 2005 on the basis that her permanent impairment was assessed at less than the 20 impairment points required under s 94(1)(b) of the Act.  She applied for a review of the decision on 20 June 2005, submitting a letter, dated 16 June 2005 (T10, p43) from Dr R M B Chan, another doctor from the practice she attends.  Dr Chan listed anxiety, depression and panic attacks as the number 1 condition and referred to hearing problems and the need to wear hearing aids.  Dr Chan stated that Mrs Wilson was receiving treatment for anxiety, depression and panic attacks.  It was Dr Chan's opinion that Mrs Wilson was totally incapacitated for work.

9.      On the basis of the information about a hearing problem an ARO set aside the decision on 18 August 2005, pending an audiologist's examination and a further HSA assessment.  At the HSA assessment, performed on 12 September 2005, the assessor indicated that the audiogram was unavailable and that Mrs Wilson's hearing problem was unlikely to preclude work in the future.  The assessor considered Mrs Wilson temporarily unfit for work, having listed earlier in the report limited employment history ahead of psychiatric factors as significant barriers to participation in social and economic activities.

10.     An audiology report, dated 24 September 2003, was received by Centrelink on 26 September 2005 (T18).  On 6 October 2005 another ARO affirmed the original decision that Mrs Wilson did not qualify for DSP as she still did not have the minimum 20 point impairment rating required.  The ARO wrote (T21):

…Although you have hearing loss in both ears you are able to cope with telephone calls and converse with others with the use of hearing aides.  You are currently being treated for depression which is likely to improve.

11. The SSAT accepted the audiology report and found that Mrs Wilson has 70.4 per cent binaural hearing loss, attracting an impairment rating of 25 points under Table 12 of the Tables. With the 5 impairment points attracted by her asthma, Mrs Wilson’s total impairment rating was 30 points, which satisfied s 94(1)(b) of the Act. However, the SSAT found that Mrs Wilson did not have a continuing inability to work and she therefore failed to satisfy s 94(1)(c) of the Act. Therefore, On 23 November 2005 the SSAT affirmed Centrelink's decision.

12.     Mrs Wilson lodged an application for review of the SSAT decision with the Tribunal on 19 December 2005.

13.     The issue before the Tribunal is whether Mrs Wilson was qualified to receive DSP at the time she lodged her claim or within 13 weeks of the date of claim.

EVIDENCE

14.     On 24 January 2006 Dr Chan wrote a letter of support for Mrs Wilson's claim (Exhibit A2) and stated that she was still suffering from chronic lethargy, inability to concentrate, intermittent asthma and aching joints.  It was Dr Chan's opinion that Mrs Wilson was totally incapacitated for work.

15.     Dr Chan referred Mrs Wilson to a psychiatrist, Dr Roger Chau, for assessment of a chronic depressive state.  Dr Chau supplied a report, dated 25 January 2006, (Exhibit A1) in which he wrote:

…Mrs Wilson has the full spectrum of depressive symptoms such as depressed mood, insomnia, low energy level, loss pleasure in life, feeling of helplessness and hopelessness, poor concentration and irritability.  Mrs Wilson was unable to pinpoint how long she had been depressed for because she had been feeling this way for years but the last 12 months have been worse than ever…

…In my professional opinion, Ms Wilson's depression is chronic and significantly impairing her occupational functioning.  No specific treatment will improve Ms Wilson's depression to the level where she can become employable in the work force.

16.     At the hearing Mrs Wilson said she had done all the caring of her son Glen including preparing and supervising his meals, ensuring he was wearing the right clothes, administering his medication, cleaning his teeth, running his bath, playing games with him and taking him shopping.  After the death of her husband in May 2004 Mrs Wilson found Glen's behaviour increasingly more difficult to cope with. He was mentally and physically abusive.  She was unable to get respite care for him. He ultimately left her care and became homeless.  She said she had been through a great deal and was no longer the person she had once been.  She said that apparently she had been suffering from depression for a long time before it was diagnosed but had just had to keep going.  She said she was seeing Dr Chan fortnightly for depression and had been sent to Dr Chau for diagnosis rather than for treatment.  Mrs Wilson said that she used to be able to do the garden and look after Glen.  She repeated that she was not the same person that she was before.  Some days she finds it hard to get up and function.  She does not sleep properly, she does not eat properly and she panics over minor stresses.  She relies on her daughter to help her.  She spends as much time at her daughter's house as she can.  She is unable to garden; her son-in-law does it.  She likes reading but cannot concentrate for long.  On some days she is okay and on others she cannot function properly.  There are more bad days than good days.

17.     Ms Wendy Hall-Wiggins, an occupational therapist of 16 years experience with post graduate qualifications in psychotherapy and family therapy and training in work capacity assessment, who had assessed Mrs Wilson in March 2006, also gave evidence.  She said that she had assessed Mrs Wilson for approximately 80 minutes.  She reported that Mrs Wilson did not have a great deal of physical difficulties.  She said that she accepted the reports of Dr Chan and Dr Chau and that there did not appear to be anything incorrect in either of them.  She stated that it was her impression that Mrs Wilson had an excellent number of transferable skills and an excellent pre‑morbid functioning level; but for people with no formal work history it is hard to perceive work roles outside of what they know.  It was her impression that Mrs Wilson had been suffering from dysthymia for quite some time.  Ms Hall‑Wiggins said, with regard to psychological function, that from her experience of treating people over many years, usually the most efficacious and successful way to help people cope and move on is to provide them with meaningful work.  She suggested Mrs Wilson could manage 30 hours of work a week in the role as a supervisor in a home for people with intellectual disabilities.  She said short term training and traineeships were available in that area.  She said that despite suffering from dysthymia Mrs Wilson had continued to care for her son and her husband, and to care for herself since the loss of her husband and the departure of her son.

CONSIDERATION OF THE ISSUES

18.     Section 94 of the Act sets out the qualifications for DSP:

94.(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

(d)       the person has turned 16; and

(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)       is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

19.     Section 94(1)(a) of the Act provides that in order to qualify for DSP a person must have a physical, intellectual or psychiatric impairment.

20.     There is no dispute that Mrs Wilson suffers from dysthymic disorder, impaired hearing and asthma.  Depression and bronchial asthma were documented by Dr Wong at the date of claim.  Mrs Wilson referred to deafness in the Medical Details form at the time she lodged her claim.  It has been established that Mrs Wilson has had a hearing impairment for a number of years.  An Audiologist’s report, date stamped by Centrelink 26 September 2005, (T18) stated that:

…Latest pure tone audiometry results (24/09/03) reveals a (sic) asymmetrical loss, with a moderate to severe mixed hearing loss in the left and a moderately severe to profound mixed loss in the right ear...these results are consistent with those obtained previously since 1994.

21.     Mrs Wilson has physical and psychiatric impairments.  She therefore satisfies s 94(1)(a) of the Act.  

22.     Section 94(1)(b) requires that a person’s impairment attracts 20 impairment points or more.  The Introduction to the Tables provides guidance as to how the Tables are to be applied, and states in part:

4. …For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...

and further:

5. The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

23.     The record of pure tone Audiometry performed on Mrs Wilson on 24 September 2003 is reproduced in the T‑documents (T18 p65).  Matching of the results on Tables 12.2 to 12.7 with the values of percentage loss of hearing appears on pages 67 to 72 of the T‑documents.  The values add up to a binaural hearing loss of 70.4 per cent which corresponds on Table 12 to having 25 impairment points.  That the condition is permanent is not in dispute.

24.     When Mrs Wilson lodged a claim for DSP it was accompanied by medical information from her treating doctor, Dr S S K Wong who completed a Treating Doctor's Report on 19 May 2005 (T5) and listed depression as Condition 1.  Dr Wong indicated that Mrs Wilson was very anxious and moderately depressed and unable to concentrate and that she was, at that time, being treated with psychotherapy and was very compliant with treatment.  Dr Wong expected the then current impact of depression on Mrs Wilson's ability to function to persist for more than 24 months.

25.     In a report dated 31 May 2005 (T6) Dr Cheung determined that Mrs Wilson had moderate, regular symptoms of depression and noted that she was not taking any medication, nor having counselling.  It was Dr Cheung's opinion that Mrs Wilson was temporarily unfit for all work for 6 to 12 months and that her condition was likely to respond to conservative measures such as counselling and support.  It does not appear that Dr Cheung took into account Dr Wong's assertions that Mrs Wilson was already receiving psychotherapy; which casts some doubt on the reliability of Dr Cheung's prognosis.

26.     In a letter dated 16 June 2005 (T10) Dr Chan listed anxiety, depression and panic attacks as the number 1 condition that Mrs Wilson was suffering from and confirmed that she was receiving treatment for anxiety, depression and panic attacks.  In another letter dated 21 September 2005 (T23), Dr Chan wrote:

...My opinion is that she has genuine psychological problems which is (sic) probably unlikely to improve and will not be able to work in any gainful occupation in the future.

27.     The evidence is that both the primary treating doctors stated that Mrs Wilson was receiving treatment for depression and both believed that her condition was unlikely to improve.  Their opinion was later confirmed by Dr Chau.  I prefer to rely on the opinions of the treating doctors rather than the opinions of the HSA assessors in this particular case, as the treating doctors had been seeing Mrs Wilson since 2003. In addition, as discussed above, key information in the treating doctor's report relating to treatment and the likely outcome of treatment was not acknowledged by the assessors.  I therefore find that Mrs Wilson, at the time she lodged a claim for DSP, was suffering from a depressive illness that had been diagnosed by her treating doctors, was being appropriately treated and was likely to persist for the next 24 months despite the treatment.  That this is correct was later confirmed by a consultant psychiatrist.  Later a work capacity assessor, Ms Wendy Hall-Wiggins, accepted that Mrs Wilson's condition was permanent.  It follows that Mrs Wilson's depressive condition can be given a permanent impairment rating.  The symptoms described in Dr Chau's letter (Exhibit A1) and as described by Mrs Wilson at the hearing, are referred to earlier in this decision and are consistent with an impairment rating of 10 points under Table 6 of the Tables.

28.     With 25 impairment points for her hearing impairment and 10 points for the depressive disorder, without considering the 5 impairment points given for asthma by one of the HSA assessors, Mrs Wilson has 35 impairment points.  She therefore has the threshold 20 impairment points required to satisfy s 94(1)(b) of the Act. 

29. Section 94(1)(c) requires that a person have a continuing inability to work.

30.     Ms Hall-Wiggins accepted that Mrs Wilson had a permanent condition but found, in her report dated 9 March 2006, that Mrs Wilson had a current capacity to undertake suitable work for 30+ hours a week.  This latter aspect of her opinion is at odds with all previous opinion.  All of the medical opinions were that Mrs Wilson was unable work at the time of writing.  All the doctors, with the exception of one of the two HSA assessors, considered her inability to work to be primarily attributable to her medical condition.  Her treating doctors did not expect her condition to improve.

31.     The respondent argued that the evidence of Ms Hall-Wiggins should be preferred to that of Dr Chau and Dr Chan because she is an independent professional with knowledge of labour market issues and extensive experience in assessing the impact of medical conditions on a person's capacity to work.  In my view, despite her statement to the contrary, Ms Hall-Wiggins does not appear to have accepted Dr Chau’s description of Mrs Wilson's symptoms (paragraph 15) before embarking on her task of assessing whether there is work she can do despite such symptoms.  Instead she has relied on her own examination of Mrs Wilson's mental state.  At page 31 of the transcript she stated:

…when I was speaking to her it was very hard to ascertain whether she had any anhedonia; whether she had ongoing, you know, depressive sort of feelings that were, you know, strong.

32.     Ms Hall-Wiggins findings do not give sufficient weight to the impact Mrs Wilson's symptoms are having on her ability to function both at home and in any potential work situation.  The evidence is that Mrs Wilson was no longer able to care for herself or her home properly.  The idea that going to work would improve Mrs Wilson's condition is speculative.  Ms Hall-Wiggins’ argument that Mrs Wilson was able to look after her son for years while suffering from dysthymia does not acknowledge clear evidence from Dr Chan, Dr Chau and the applicant herself, that her condition deteriorated considerably in 2004 after which time she was not able to cope with the task.

33.     At one point in the hearing Ms Hall-Wiggins stated (page 36 of the transcript):

…I think the fact that she has not followed through it any further psychiatric treatment via counselling sessions, or via Dr Chau, suggest to me that, you know, she is doing okay.

This statement does not recognise that Mrs Wilson has had regular psychotherapy from her treating doctors from the outset, the cost and availability of ongoing specialist treatment and the fact that it was Dr Chau's opinion that no specific treatment would assist her.  I note that the telephone counselling with which Mrs Wilson did not continue was being provided by Carers Counselling Program Victoria.  Since Mrs Wilson ceased being a carer in April 2005 there is a question as to the ongoing relevance of such counselling.

34.     It was Ms Hall-Wiggins' opinion that the effect of Mrs Wilson's hearing problem on her hearing capacity "is very limited".  She explained that she had made the calculations on Mrs Wilson's audiometric results as assessors are instructed to do, and arrived at a rating of 25 points for her impaired hearing.  She said with respect to her assessment of Mrs Wilson, (page 33 of the transcript):

…She communicated beautifully; she appeared to get most things that were discussed - or all things that were discussed, and she appeared to have no problems in a functional sense.  And that is also supported by one of the ratings which said that she had a 94 percent…speech comprehension score on the audiometry as well…Obviously if she was expected to work in a very loud environment, that would be tough, but I think it would be tough for most of us and she has her hearing aid, so she should be able to function quite well.

This opinion appears to equate the impact of Mrs Wilson's hearing loss with that of people with no hearing loss, which would be incorrect.  It ignores the 25 point impairment rating given under the Tables for a 70.4 per cent binaural hearing loss and the considerable specialist medical and occupational expertise that went into the preparation of the Tables.

35.     The respondent referred to the case of Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 in which the Tribunal stated that:

...it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been (sic) assessed does or does not have the requisite work capacity…

However, I note that in that case the Tribunal noted:

...the applicant did not adduce any evidence to provide a counterweight to the work capacity evidence relied on by the respondent…

36. In this case I am not persuaded that the work capacity assessor, Ms Hall‑Wiggins, has accepted the conditions and findings of other medical personnel in concluding that the applicant has a capacity to work 30 hours a week or to undertake retraining that could equip her to be employed. For this reason I prefer the assessments and conclusions of all the medical practitioners with respect to Mrs Wilson psychiatric symptoms and the impact that they have on her ability to work. It is true that Mrs Wilson has been out of the workforce for many years and that this would be a barrier to re-entry to the workforce but the evidence from four of the five medical opinions is that her apparent lack of motivation for work is primarily as a result of her medical condition and I am persuaded to that view. I prefer the opinions of the treating doctors over those of the HAS assessors with respect to permanence for the reasons discussed on page 9 of this decision. I accept the audiologists report and find that the impairment rating given for a 70.4 per cent binaural hearing loss is a true reflection of the contribution it has to impairment for work. I therefore find that the impact of Mrs Wilson's medical conditions is sufficient to prevent her from working for 30 hours a week, with or without the assistance of retraining. She therefore satisfies s 94(1)(c) of the Act in that she has a continuing inability to work.

37. The date at which entitlement is assessed or the period within which entitlement is assessed is found at Schedule 2, s 4(1)(a)-(d) and s 4(2)(a) of the Social Security (Administration) Act 1999:

Start day—early claim

4.(1)        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.

4.(2)        For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment…

38.     The legislation requires that, in order to qualify for a benefit, an applicant must be qualified to receive that payment at the time they lodge their claim or become qualified within 13 weeks of the date of claim.  Mrs Wilson lodged a claim for DSP on 23 May 2005.  In order for the claim that she made on that date to be successful she would need to have been qualified to receive that benefit on 23 May or within the following 13 weeks, a period referred to as the assessment period.  In my view the evidence establishes that Mrs Wilson has suffered from long‑standing dysthymic disorder, that following further adverse life events from 2004 her condition deteriorated to the point that she became unable to work.  Regularly supportive treatment that was deemed appropriate failed to significantly improve her condition and this was evident from the time she lodged her claim.  A significant hearing impairment, contributing to her impairment for work, has been present for at least 10 years.  I therefore find Mrs Wilson is qualified to receive DSP and was so qualified at the date of claim.

DECISION

39.The Tribunal sets aside the decision under review and substitutes a new decision that Mrs Wilson is qualified to receive DSP and has been so qualified since 23 May 2005.

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision of:

P.D. Fricker, Member

signed:   Olympia Sarrinikolaou

Clerk

Date of hearing:  6 June 2006
Date of decision:  20 July 2006
Advocate for applicant:               Self-represented
Advocate for respondent:            Ms J. Hume, Legal Services Branch, Centrelink