Stephan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 126 (12 March 2013)

Last Updated: 12 March 2013

[2013] AATA 126

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4497
Re	WAYNE STEPHAN
	APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
	RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	12 March 2013
Place	Brisbane

The Tribunal affirms the decision under review.

.......................................................................
Ms Lee Cross, District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical impairments suffered by applicant – Permanency of conditions – Appropriate allocation of rating – Inability to work – No finding on permanency of conditions – No impairment rating able to be allocated for the conditions – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) sch 2, cl 4

CASES

Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788

Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr M Denovan, Member

12 March 2013

INTRODUCTION

1. The applicant, Mr Wayne Stephan, suffers from breathing difficulties and associated feelings of anxiety and depression. On 5 March 2012, Mr Stephan lodged a claim for disability support pension (DSP). On 17 April 2012, the respondent rejected the claim on the basis Mr Stephan was assessed as having less than 20 impairment points.
2. An authorised review officer affirmed the decision on 4 July 2012, as did the Social Security Appeals Tribunal on 26 September 2012.
3. The application for review of the decision by the Administrative Appeals Tribunal was lodged on 8 October 2012.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

4. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for disability support pension. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:
   • must have a physical, intellectual or psychiatric impairment;
   • his impairment must be of 20 points or more under the Impairment Tables;^[1] and
   • he must have a continuing inability to work.
5. Under sch 2, cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date. For the applicant’s claim for DSP, that period is from 5 March 2012 to 28 May 2012.
6. Before an impairment rating can be assigned under Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), which was made by the Minister pursuant to sub 26(1) of the Act on 6 December 2011, it is necessary to determine whether Mr Stephan’s condition or conditions can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.
7. Ms Smith, for the respondent, contended that none of the conditions from which Mr Stephan suffers could be considered permanent.
8. A condition is permanent if it has been fully diagnosed, treated, and stabilised and is likely to persist for more than two years.^[2]
9. In deciding whether a condition has been fully diagnosed and fully treated, the following is to be considered:^[3]

(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.

10. A condition is fully stabilised if:^[4]
    • (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
      • (b) the person has not undertaken reasonable treatment for the condition and:

(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii) there is a medical or other compelling reason for the person not to undertake treatment.

11. The issues that I must determine are:
    • what, if any, physical, intellectual or psychiatric impairments Mr Stephan has;
    • whether all or any of those conditions are permanent, and if so what ratings they should be allocated; and
    • if he has 20 impairment points or more, whether he has a continuing inability to work.

APPLICANT’S CASE AND CONTENTIONS

12. Mr Stephan told me he was diagnosed with cancer of the lung 12 years ago. He was referred to the Prince Charles hospital, operated on and then he returned to work. In spite of having part of his lung removed he was able to continue working as a manager of a hay farm until about two years ago. At that time the owner of the farm died and the farm was sold. Mr Stephan did not seek alternative employment at that time. He had been struggling to keep his job at the farm, relying on the help of his son and son-in-law. The problem was his shortness of breath; it interfered with all the activities he was required to perform in his role as farm manager. Those included buying supplies for the farm, spreading and throwing, and harvesting the hay.
13. Although Mr Stephan had been able to keep his job until the owner of the farm died, he has been struggling due to the effects that the worsening shortness of breath has on his life. Every aspect of his daily living activities is affected. As well as needing assistance with work, his capacity to care for himself has deteriorated over time. By the time Mr Stephan lost his job he was unable to shower himself without assistance. He struggles to walk more than a few meters due to his shortness of breath. Mr Stephan, a previously proud man, now finds himself dependant on his family for care and is unable to perform basic daily tasks at home such as cooking and cleaning.
14. Around the time he lost his job Mr Stephan and his wife separated. Mr Stephan said he had a great deal of difficulty emotionally coming to terms with the effect his physical illness was having on his life. Specifically, his inability to work and care for himself made him feel extremely angry and depressed and interfered with all his interpersonal relationships. Things came to a head on 5 March 2012. Mr Stephan told me he was taken by his family to see Dr Walsh because whilst he was out in public, with the intention of shopping, his incapacity to interact with others resulted in him arguing with strangers to the extent that he was “about to get into trouble with the police”. Mr Stephan also told me he was suicidal at that time. Dr Walsh referred Mr Stephan to Logan Hospital and suggested he apply for DSP.

MEDICAL EVIDENCE

15. In support of his claim, Mr Stephan provided a medical report from general practitioner Dr Walsh. In that report, dated 5 March 2012,^[5] Dr Walsh stated that Mr Stephan suffered from “adjustment disorder with depressed mood”. Dr Walsh indicated Mr Stephan had problems managing his personal situation, his home life, his relationship with his son and problems controlling his anger. Dr Walsh made no mention of any respiratory condition in her first report.
16. Mr Walsh provided an additional medical report, dated 4 May 2012,^[6] in which she identified the additional diagnoses of asthma and prostatitis. Dr Walsh stated the asthma was a presumptive diagnosis, made on 4 May 2012, and that no puffers had been used to treat the condition in the past. Dr Walsh stated that the first presentation of this condition was on 20 April 2012.
17. Since about the end of June 2012 Mr Stephan has changed general practitioners; he now sees Dr Yogasivan, who works out of the same practice as Dr Walsh and has access to all of the clinical notes of Dr Walsh. Dr Yogasivan provided a medical report (dated 12 July 2012), received by Centrelink on 11 July 2012,^[7] in which he listed two conditions: depressive anxiety disorder, and asthma (1) and sleep apnoea (2). In a later report, dated 25 September 2012,^[8] Dr Yogasivan referred to Mr Stephan’s respiratory conditions as “shortness of breath on exertion – COPD – mild – moderate, tumour of Lt lung, lobectomy of Lt lung”. Dr Yogasivan referred to Mr Stephan’s mental illness as “depressive illness; anxiety disorder”. Dr Yogasivan listed insomnia, sleep apnoea and anxiety as conditions that are generally well managed and that cause minimal or limited impact on Mr Stephan’s capacity to function.
18. Dr Yogasivan gave evidence at the hearing. He made reference to the clinical notes whilst doing so. Dr Yogasivan said that Mr Stephan was treated in 2003 and 2004 with puffers, Atrovent, Serotide and Ventolin and with medication prednisolone. According to Dr Yogasivan, this was the earliest indication in the practice notes that he presented with symptoms of asthma or COPD^[9]. Dr Yogasivan explained that when he first saw Mr Stephan he realised that what other doctors had referred to as asthma was the same condition he was now calling COPD. Treatment wise there is no difference between the two conditions. Dr Yogasivan was concerned about the severity of Mr Stephan’s shortness of breath when he first treated him. Because of the previous diagnosis of cancer, Dr Yogasivan thought it was prudent to have Mr Stephan reviewed by a specialist as he was not sure where the shortness of breath was originating. Mr Stephan was reviewed by Respiratory and Sleep Physician Dr J Stroud. In her report dated 18 December 2012,^[10] Dr Stroud rules out the recurrence of malignancy. She refers to Mr Stephan’s condition as COPD with an element of asthma and sleep apnoea and I accept this to the most appropriate diagnoses for Mr Stephan’s respiratory medical condition that causes him to be short of breath.
19. Dr Yogasivan said that he has had to adjust the treatment for Mr Stephan’s COPD. He believes Mr Stephan’s vital capacity has improved, since he has changed the medications, however his capacity to function sadly has not improved. According to Dr Yogasivan, Mr Stephan needs to lose weight, which will help control his sleep apnoea and help improve his breathing. There is no specific weight loss program being followed currently.
20. Dr Yogasivan said that Mr Stephan was depressed, in his opinion, secondary to his incapacity to function, a result of his breathing difficulties which affect his ability to care for himself and his family. Dr Yogasivan said he had offered Mr Stephan counselling and had also referred him to Ms Laura Gardner, clinical psychologist. Dr Yogasivan said he had considered sending Mr Stephan to a psychiatrist and thought he may have talked about it with him, but decided it was not necessary.
21. Ms Gardner gave evidence at the hearing. She first saw Mr Stephan on 3 December 2011. Mr Stephan did not return until August 2012. Since August 2012 Mr Stephan has attended on a total of eight occasions. Ms Gardner said Mr Stephan showed symptoms of depression and anxiety. She had noted these symptoms on the first presentation in December 2011. Ms Gardner said Mr Stephan’s symptoms were much more severe when he represented in 2012 than when she first saw him in 2011.

CONSIDERATION

COPD with an element of asthma and sleep apnoea

22. Dr Walsh and Dr Yogasivan have provided different diagnostic labels for Mr Stephan’s respiratory conditions.
23. In the case of Bugno and Secretary, Department of Employment and Workplace Relations^[11] the Administrative Appeals Tribunal considered that subpara 94(1)(b)of the Act “does not require the diagnosis of a specific disease, but does require [the] diagnosis and documentation of the nature of impairment...”. In the case of Maroun and Secretary to the Department of Family and Community Services^[12] it was not considered a bar to a successful claim for DSP that different diagnostic labels had been given at various times to a condition that existed in the same form for many years.
24. Although Dr Yogasivan told me that “asthma” and “COPD” are the same conditions with respect to treatment, the problem here is the evidence from the medical records suggests Mr Stephan’s respiratory condition (asthma or COPD) is only of recent onset. Mr Stephan did not present with symptoms of “asthma” until 20 April 2012, five to six weeks prior to the end of the time period he needed to qualify for DSP. At the time of that presentation, “asthma” was a presumptive diagnosis only. This is not a case where the condition has existed in the same form for many years and the nature was well documented by treating doctors but just given different diagnostic labels. In Mr Stephan’s case, apart from some presentations in 2003 and 2004, he had only presented to Dr Walsh once, on 20 April 2012, and she had not made a definitive diagnosis of asthma. In her report Dr Walsh noted Mr Stephan had never been treated in the past for asthma. She indicated the planned treatment was regular reviews of Mr Stephan’s asthma, however it was not clear that any reviews had occurred and it appears Mr Stephan was not assessed again until he saw Dr Yogasivan.
25. Dr Yogasivan clearly accepts the history provided to him by Mr Stephan and is of the opinion Mr Stephan’s shortness of breath due to COPD is not a condition of recent onset. Dr Yogasivan, however, did not provide the diagnosis of COPD and sleep apnoea until after the 13 week qualifying period and Mr Stephan was not referred to Dr Stroud for diagnosis until after that period. Dr Yogasivan referred Mr Stephan to Dr Stroud because he was uncertain as to the cause of the shortness of breath. The medical records do not support Mr Stephan’s claim that he had been suffering from, and treated for, shortness of breath for a number of years since his operation for cancer. For these reasons the condition cannot be regarded as fully diagnosed during the 13 week period after the date of claim.
26. Dr Yogasivan explained how changes to Mr Stephan’s medication regime have improved his respiratory functional capacity. These changes were made after Dr Yogasivan commenced treating Mr Stephan, which was long after the 13 week period after the date of claim expired. It is not clear to me when Mr Stephan was first treated for sleep apnoea. He is currently renting a CPAP machine and told me he has lost some weight. Further weight loss is necessary before that condition can be regarded as fully treated. For these reasons COPD and sleep apnoea cannot be regarded as fully treated and stabilised during the required 13 week time-frame.
27. As the COPD with an element of asthma and sleep apnoea was not fully diagnosed and treated and not fully stabilised it follows that it cannot be assigned an impairment rating.

Adjustment disorder/depression/anxiety

28. Pursuant to the Introduction to Table 5 of the impairment tables contained in the Determination in relation to a mental health condition, the diagnosis, if made by a general practitioner, must be done with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. Dr Yogasivan told me that he made the diagnosis of depression without reference to the report of the clinical psychologist Ms Gardner, although he told the Tribunal there is one in Mr Stephan’s medical records dated December 2011 and another dated July 2012.
29. It was Ms Smith’s, for the respondent, contention that as Dr Walsh’s medical report makes no reference to a clinical psychologist report then the diagnosis of adjustment disorder with depressed mood cannot be accepted. I do not accept that contention. There was a report in the clinical records of Mr Stephan and Mr Stephan had been Dr Walsh’s patient for two years. At the time Dr Walsh completed the medical report she stated the diagnosis was confirmed and at the same time also referred Mr Stephan to Logan Hospital because of his mental condition. I think it is highly likely Dr Walsh would have been familiar with the report of Dr Gardener dated December 2011. I also note there is no notation in the Centrelink medical report that requests the completing medical practitioner make reference, if possible, to a clinical psychologist report. For these reasons I am prepared to accept, on the balance of probability, that Dr Walsh was aware of the report of Ms Gardner when she provided the diagnosis of adjustment disorder with depressed mood. I find that the condition was fully diagnosed at the time Dr Walsh completed her report dated 5 March 2012.
30. In her reported dated 4 May 2012, Dr Walsh indicated future treatment for his mental health problem included psychotherapy with Seroquel, and counselling and review by a psychologist. Mr Stephan had consulted psychologist Ms Gardener in December 2011, for one session only, but failed to continue with treatment. The evidence of Ms Gardener is that his condition deteriorated between December 2011 and August 2012. Fortunately he is now again receiving counselling with Ms Gardener. However, because he did not continue with the treatment plan prescribed for his mental health condition, the condition cannot be regarded as being fully treated during the 13 weeks period which ceased on 28 May 2012. For this reason no impairment rating can be allocated for this condition.

Other conditions

31. Dr Yogasivan indicated that the conditions of prostatitis and insomnia have little or no effect on Mr Stephan’s capacity to function. They are not conditions that can be assigned an impairment rating.
32. Mr Stephan does not have any conditions that can be allocated an impairment rating.

DECISION

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

........................................................................
Associate

Dated 12 March 2013

Date of hearing	12 February 2013
Applicant	In person
Solicitors for the Respondent	Ms Donna Smith, departmental advocate

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^[1] See Social Security Act 1991 (Cth), s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

^[2] See cl 6(4) of the Determination.

^[3] See cl 6(5) of the Determination.

^[4] See cl 6(6) of the Determination.

^[5] Exhibit 1, T-document 9, pp. 75-82.

^[6] Exhibit 1, T-document 12, pp. 90-98.

^[7] Exhibit 1, T-document 15, pp. 110-117.

^[8] Exhibit 1, T-document 16, pp. 118-125.

^[9] Chronic obstructive pulmonary disease.

^[10] Exhibit 3, submitted on 12 February 2013.

^[11] [2005] AATA 788 at [38].

^[12] [2003] AATA 347 at [12].