Blyton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 599 (30 August 2011)

Last Updated: 30 August 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 599

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/0770

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MAREE BLYTON

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 30 August 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...............[Sgd]...............................
Senior Member

CATCHWORDS
SOCIAL SECURITY – Disability support pension – Impairment Tables – Psychiatric impairment – Conditions not treated or stabilised with 13 weeks of date of claim – Conditions unable to be given impairment rating – No entitlement to disability support pension – Decision under review affirmed

Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth) cl 4(1) Schedule 2

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

REASONS FOR DECISION

30 August 2011

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. I have to decide whether Ms Maree Blyton (“the applicant”) is entitled to receive disability support pension. In making a decision about her eligibility for that benefit, I have to examine whether the applicant had medical conditions which impaired her ability to work at the date of her claim or within a period of 13 weeks following the date of her claim.

PRIOR DECISIONS

2. On 28 July 2010 the applicant made a claim for disability support pension. At the hearing of this application she stated that she lodged her claim on the advice of an officer of Centrelink.
3. On 1 September 2010 Centrelink made a decision that the applicant was not qualified to receive disability support pension. On 29 November 2010 an authorised review officer affirmed the decision.
4. By a decision despatched on 1 February 2011 the Social Security Appeals Tribunal affirmed the decision of Centrelink that the applicant was not qualified to receive disability support pension.
5. On 1 March 2011 the applicant made an application for review to this Tribunal.

ELIGIBILITY CRITERIA

6. The qualification criteria for disability support pension are contained in s 94 of the Social Security Act 1991 (Cth) (“the Act”).
7. A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.
8. In considering whether the applicant had a “continuing inability to work” I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent the person from doing any work or training within the next two years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week that exists in Australia even if that work is not locally accessible (s 94(5)).
9. I should mention that there are other provisions in s 94 that the applicant satisfies. She is over the age of 16 years (s 94(1)(d)) and she is an Australian resident (s 94(1)(e)(i)).

IMPAIRMENT TABLES

10. The Impairment Tables which I am required to apply are in Schedule 1B of the Act. It is also necessary for me to have regard to the instructions in the Introduction to the Impairment Tables.
11. Paragraph 2 of the Introduction to the Impairment Tables provides that the Tables “are designed to assess impairment in relation to work”.
12. Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
13. Paragraph 5 of the Introduction to the Impairment Tables states that a condition “must be considered to be permanent”. The paragraph states that “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”. The paragraph concludes with a statement that a condition will be considered to be fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.
14. Paragraph 6 of the Introduction to the Impairment Tables states that “in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred” and “whether any treatment is still continuing or is planned in the near future”.
15. There is no issue that the appropriate table for the applicant to be assessed under is Table 6 (Psychiatric Impairment).

TIME FOR DETERMINING ELIBILITY

16. At the hearing of her application I informed the applicant that to be qualified to receive the disability support pension, she must meet the eligibility criteria on the date she made her claim, or within 13 weeks of the date of her claim.^[1] That period commenced on 28 July 2010 and ended on 27 October 2010. I appreciate that the applicant may make another claim for disability support pension. However, in considering this application I am confined to considering the eligibility of the applicant in that 13 week period.

TREATING DOCTOR’S REPORT

17. Centrelink was provided with a Treating Doctor’s Report dated 28 July 2010.^[2] The treating doctor reported diagnoses of major depressive disorder and alcohol dependence.
18. The treating doctor reported that the date of onset of the major depressive disorder was stated to be 2006 - 2007, and current symptoms were noted as “persistent unresolved grief/anger and agitation; suicidal ideation; alcohol dependence; self neglect” (p 37). The report mentions that the depressive disorder was not being treated. The treating doctor reported on the impact of this condition on the applicant’s ability to function. It was noted that “depression and alcohol dependence co-morbidly effect whole ability to cope”, and that within the next two years the effect of the condition on the applicant’s ability to function would “somewhat improve/fluctuate/uncertain” depending on the applicant’s compliance with treatment (p 38).
19. The treating doctor reported that the date of onset of the condition of alcohol dependence was 2007. Current symptoms were noted as being “ongoing alcohol dependence” and current treatment as a “home detox program” (p 39). The report stated that the applicant had refused a structured detox program. Future treatment was noted as “alcohol abstinence/detoxification” (p39). Earlier in the report it was stated that the applicant had been prescribed medication (Campral) for alcohol dependence (p 38). In response to questions regarding the impact of this condition on the applicant’s ability to function, the report stated that “when at lowest state – unable to self care and communicate. Currently relatively stable/self caring” (p 40). Within the next two years the effect of the condition on the applicant’s ability to function would “somewhat improve/fluctuate/uncertain” depending on the applicant’s compliance with various treatment programs (p 40).

OTHER MEDICAL REPORTS

20. The applicant provided a number of medical reports which were admitted into evidence.
21. A Discharge Summary from The Palm Beach Currumbin Clinic dated 15 October 2004 confirms that the applicant was admitted on 11 October 2004. However, she was uncooperative with treatment and discharged herself against the advice of the clinic. In giving evidence before me the applicant stated that she was not at all happy with the medication that was being administered to her.
22. Dr T Lotz, psychiatrist, wrote a report, dated 11 January 2007, in which he confirms that the applicant had only recently consulted him after having had a relapse of her alcohol abuse condition following the recent death of her daughter. Dr Lotz considered that the applicant was then experiencing a grieving reaction and recommended a course of treatment.
23. Dr David Stratton, psychiatrist, wrote a report, dated 30 September 2010, in which he confirmed diagnoses of major depressive disorder and alcohol dependency and abuse. He recommended treatment be commenced with Avanza and readmission to Damascus. Dr Stratton wrote a further report dated 15 October 2010 in which he again recommended the readmission of the applicant to Damascus for inpatient treatment.
24. Dr F Loo, general practitioner, wrote a report dated 5 May 2011. In her report Dr Loo expressed agreement with Dr Stratton that the admission of the applicant to hospital for inpatient detoxification would be likely to lead to an improvement of her condition. The report also confirms that Dr Stratton had commenced the applicant on Avanza, which she had been taking since September 2010. Dr Loo also stated that further sessions with Dr Stratton and admission as an inpatient to address the applicant’s bereavement, depression and alcohol dependency may likely lead to an improvement in her condition.

WORK CAPACITY ASSESSMENT REPORTS

25. On 29 July 2010 a Job Capacity Assessment Report was completed with, an assessment made by Ms Claire Mulcahy, a Registered Psychologist.^[3] In the report the applicant’s medical conditions were stated to be depression and alcohol dependence (p 46). Both conditions were considered to be fully diagnosed, but neither were fully treated and/or fully stabilised. In the report it was also noted that she was not currently taking any medication or participating in psychological intervention in respect of her depression. In respect of the alcohol dependence condition, the applicant reported that she was not currently taking any medication or participating in psychological intervention. While medication with Campral was noted as current treatment in the medical report^[4] , the applicant advised that she was not currently taking any medication, and that she had also declined to participate in a structured detoxification program or home reduction program (p 46). Ms Mulcahy reported that as the applicant had not undertaken any treatment for her depression or alcohol dependence, those conditions could not be regarded as having been fully treated and stabilised, and, accordingly, neither could be assigned an impairment rating (p 47).
26. Ms Mulcahy also considered that the applicant had a current baseline capacity for work of 8 – 14 hours per week (p 48), or 15 – 22 hours per week with intervention (p 49). However, having regard only to those conditions which were fully diagnosed, treated and stabilised, Ms Mulcahy assessed the applicant’s capacity to work as 30+ hours per week (p 49).
27. On 2 June 2011 a further assessment was undertaken by Ms Mulcahy in which she considered additional medical reports provided by the applicant.^[5] Ms Mulcahy reported that the applicant did not receive treatment for depression at the time of her claim in July 2010, and that she had only commenced treatment in September 2010 when she saw Dr Stratton. Ms Mulcahy also noted Dr Loo’s opinion that Ms Blyton’s condition was expected to improve with treatment. Ms Mulcahy reported:

During the relevant period (28/7/2010 – 27/10/2010) ... depressive condition/s were not optimally treated. During this period she had re-engaged with a psychiatrist and re-commenced anti-depressant medication for only 1 month, following an unknown period of “no specific treatment for depression”. The potential for significant improvements in her condition following re-engagement in treatment was therefore sufficient to consider this condition “not fully treated and stabilised” ... and thus [this condition] cannot attract a rating on Impairment Table 6.^[6]

28. In respect of the condition of alcohol dependence, Ms Mulcahy noted that at the time of the claim in July 2010, the applicant was not compliant with her Compral treatment. She also noted the opinions of Dr Loo and Dr Stratton that inpatient treatment was the optimal course of treatment and that the applicant’s condition was likely to improve with such treatment. Ms Mulcahy also reported that the applicant’s:

... unwillingness to commit to treatment at present cannot be attributed to an absence of insight into the likely benefits of treatment. This is particularly evident in the letters of Dr Stratton which indicate that prior engagement in treatment with Damascus was successful and viewed favourably by the client.^[7]

29. Ms Mulcahy concluded the applicant:

... is currently working with her GP to reduce alcohol consumption and indicates her intention to complete inpatient treatment in the future. Given past success following admission to Damascus, and the likely improvement associated with readmission, this condition cannot be considered optimally treated and stable. Based on this information, Ms Blyton’s condition cannot be considered fully treated and stabilised at present and thus cannot be assigned a rating on Impairment Table 7.^[8]

CONSIDERATION

30. The respondent accepts that the applicant does have a physical, intellectual or psychiatric impairment for the purpose of the Act (s 94(1)(a)). This concession is properly made, as in evidence before me is an uncontradicted report from psychiatrist Dr David Stratton who, on 30 September 2010, confirmed diagnoses of major depressive disorder, and alcohol dependency and abuse. This is evidence that the applicant had such impairments within a period of 13 weeks following the date of her claim.
31. I must next consider whether the major depressive disorder and alcohol dependency conditions of the applicant warrant her being assigned an impairment rating of 20 points or more under the appropriate table or tables in the Impairment Tables (s 94(1)(b)).
32. There was no issue before me that the appropriate Table to assess the condition of the applicant is Table 6 (Psychiatric Impairment). The introductory words to Table 6 contain the direction: “Table 6 is used for permanent psychiatric disorders only”. I note that Ms Mulcahy was unable to assign a rating under Table 7, which relates to the alcohol dependency condition, because the condition is not fully treated and stabilised.
33. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
34. The conditions of the applicant are certainly fully diagnosed as there is uncontradicted evidence that the applicant has major depressive disorder and alcohol dependency conditions. I also rely upon the Treating Doctor’s Report of 28 July 2010^[9] in finding that the onset of both of these conditions occurred in 2007.
35. The applicant has certainly received some treatment for her conditions. I accept the evidence of the applicant (who I also accept as a truthful witness) that not all of her treatment has been recorded in the Treating Doctor’s Report.^[10] Her evidence in this respect is indeed corroborated by the documentary evidence before me. For instance, the report of Dr Lotz^[11] refers to medication that was prescribed by the treating doctor but which is not referred to in the Treating Doctor’s Report. I presume that Dr Lotz would have been made aware of the treatment in a letter of referral which is not in evidence before me.
36. I am satisfied that the applicant has not pursued all treatment options which have been recommended. The applicant has been truthful in stating that she has been reluctant to take all medication that has been prescribed for her. I also accept that there is an issue of cost for inpatient treatment as the applicant no longer has private health insurance. That is why, at the conclusion of my reasons, I recommend that the applicant be given assistance by a social worker so that she can receive whatever treatment is available. Therefore, the condition cannot be considered to be fully treated.
37. I am not satisfied that the conditions of the applicant have been stabilised within a period of 13 weeks following the date of her claim. This period ended on 27 October 2010. A fortnight earlier, on 15 October 2010, Dr Stratton reported on her treatment for depression”. He reported that the medication which she was prescribed “has yet to show much impact on her depression” and that inpatient care was needed for her complex bereavement, depression and alcohol dependency conditions.^[12] Having regard to this evidence, I cannot accept that these conditions were stabilised within the period of 13 weeks following the date of her claim. I should also mention that Dr Loo has given a positive prognosis, provided the applicant undertakes the recommended treatment. It is for that reason that it would be premature to regard the conditions of the applicant as permanent.
38. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. In these circumstances I am unable to assign a rating under Table 6 for the depression condition of the applicant which were not stabilised within the period of 13 weeks following the date of her claim.

Continuing inability to work

39. As I have concluded that the applicant cannot be assigned an impairment rating, it is not strictly necessary for me to determine whether she has a continuing inability to work. However, I feel that it is appropriate for me to make some observations on the application of s 94(2) of the Act.
40. In order for the Secretary to conclude that a person has an inability to work because of an impairment it is necessary that the criteria in both s 94(2)(a) and s 94(2)(b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).
41. The judgment of the Federal Court of Australia in Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 (“Pusnjak”) was cited at the hearing of this application. In that case Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour, at 452, formulated the test that I must now consider:

As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?

42. In considering the application of s 94(2)(a), I must refer to the definition of “work” in s 94(5) of the Act. This defines ‘work’ as meaning work for at least 15 hours per week.
43. I now turn to s 94(2)(b) of the Act. I mention that for a claimant to be successful it is necessary for the claimant to satisfy either s 94(2)(b)(i) or s 94(2)(b)(ii) of the Act.
44. In Pusnjak, Drummond J at 452 also formulated the test under s 94(2)(b)(i) of the Act. His Honour remarked:

As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

45. In considering the application of s 94(2)(b)(ii) of the Act, I have had regard to the guidance provided in Pusnjak where Drummond J at 452 formulated the test under that provision:

As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete the training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?

46. His Honour remarked that an affirmative answer to this question would mean that “the applicant will not be eligible for the pension”.^[13]
47. I have accepted the Job Capacity Assessment of Ms Mulcahy that the applicant has a current baseline capacity for work of 8-14 hours per week, or 15-22 hours per week with intervention. However, having regard only to those conditions which were fully diagnosed, treated and stabilised, Ms Mulcahy assessed the applicant’s capacity to work as 30+ hours per week (p 49). I therefore consider that the applicant does not satisfy the test in s 94(2)(b)(ii) of the Act.
48. I also accept the evidence of the applicant that she has explored options for employment.
49. There is no evidence before me that the impairments of the applicant are of themselves sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next two years under the terms of s 94(2)(b)(i) of the Act. Indeed the applicant in giving evidence was amenable to being retrained. The applicant has valuable experience in assisting her late husband in his accountancy practice. The tenor of her evidence was that she had experience in manual bookkeeping but that she could benefit from some computer training. I would recommend that some assistance should be provided to the applicant to identify some suitable training programs which could assist her.
50. Having regard to all of the evidence before me I have come to the conclusion that the applicant is not entitled to disability support pension as s 94(1)(b) and 94(1)(c) of the Act are not satisfied.
51. As a matter of completeness I should mention that the treating doctor has identified, in his report, some other medical conditions of the applicant which it is not necessary for me to identify.^[14] It is not necessary for these conditions to be rated as the treating doctor has stated that these now have a minimal effect on her condition.
52. I recommend that Centrelink should provide some support to the applicant to assist her in obtaining treatment for her conditions. The applicant informed me that at one time she had no accommodation. She does not have any immediate family to provide her with support and she certainly needs assistance.

DECISION

53. I affirm the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ......................[Sgd].......................................................

Research Associate

Date/s of Hearing 12 August 2011

Date of Decision 30 August 2011

The applicant was self-represented

Solicitor for the Respondent Karen Hamilton, departmental advocate

---

^[1] Social Security (Administration) Act 1999 (Cth), Sch 2 cl 4.
^[2] T-Document 6.
^[3] T-Document 8.
^[4] T-Document 6.
^[5] Exhibit G.
^[6] Exhibit G, page 2.
^[7] Exhibit G, page 4.
^[8] Exhibit G, page 4.
^[9] T-Document 6.
^[10] T-Document 6.
^[11] Exhibit B, page 2.
^[12] Exhibit D.
^[13] Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 at 452 at [32].
^[14] T-Document 6, Folio 41.