Cleary; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1979
•22 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1979
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/304
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
RHONDA CLEARY
Respondent
DECISION
Tribunal Dr E Christie, Member
Dr B Morley, MemberDate22 November 2007
PlaceBrisbane
Decision The decision under review is affirmed. ................[Sgd]........................
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – depressive condition –– alcohol abuse – “fully treated” condition –– expert evidence: evaluation of competing medical opinions - model litigant policy
Administrative Appeals Tribunal Act 1975 s 33(1)(AA)
Social Security Act 1991 s 94 and Schedule 1B
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
EMI (Australia) Ltd v Bes [1970] 2 N.S.W.R. 238
WRITTEN REASONS FOR DECISION
22 November 2007 Dr EK Christie, Member
Dr B Morley, Member
1. This is an application by the Secretary, Department of Employment and Workplace Relations for a review of a decision of the Social Security Appeals Tribunal made on 30 March 2006 which decided that Rhonda Cleary remained at all times qualified for disability support pension (“DSP”).
2. In reaching its decision, the Social Security Appeals Tribunal concluded (at T2, Folios 7, 8) that Ms Cleary had a total rating under the impairment tables of 45 points made up of:-
· Alcohol Dependence (20 points – Table 7)
· Anxiety/Depression (20 points – Table 6))
· Asthma (5 points – Table 1)
3. Ms Cleary first became entitled to DSP on 15 November 2000. Her continuing entitlement to disability support pension was cancelled by Centrelink on 12 December 2005.
4. At the hearing, the applicant was represented by Miss E Ford of Counsel. Mr P Cousins, Legal Aid Queensland, represented the respondent.
5. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” Documents (Exhibit 1) and the various exhibits lodged by the parties.
Issues Before The Tribunal
6. There were a number of issues for the Tribunal to decide:
(a)whether at the time of the DSP cancellation (16 December 2005) Ms Cleary suffered from medical condition(s) that were fully investigated, treated and diagnosed such that a rating of 20 points or more could be assigned under the Impairment Tables; and
(b)whether at the time of the DSP cancellation (16 December 2005) Ms Cleary had a continuing inability to work.
7. In terms of exchange of expert medical reports between the parties, before the Tribunal hearing on 26 June 2007, solicitors for the respondent filed the following letter with the Tribunal on 19 March 2007:
“We refer to our phone conference yesterday with Conference Registrar Rogers and enclose for filing –
1.Report of Dr Andrews, treating General Practitioner (Brassall Clinic) dated 27 October 2006
2. Report of Dr Kar, Psychiatrist dated 11 January 2007
3. Further report of Dr Kar dated 30 January 2007
We understand that the Australian Government Solicitor, for the Applicant, will file complementary reports from Drs Andrews and Kar. We have copies of those reports, and the AGS has copies of the reports now enclosed.”
8. Consequently, all relevant expert reports were exchanged three months before the hearing on 26 June 2007.
9. At the commencement of the hearing, in response to a Tribunal question, Miss Ford acknowledged that the applicant had elected to not call for cross-examination medical experts i.e. Ms Cleary’s treating doctors (Dr Andrew, treating general practitioner and Dr Richardson, treating psychiatrist), who had prepared reports that formed part of the ‘T’ documents and/or reports prepared and exchanged for the hearing.
10. Dr P Kar, consultant psychiatrist, gave evidence on behalf of the applicant at the hearing. Rhonda Cleary also gave oral evidence.
11. On the basis of the evidence before it, the SSAT made the following findings of fact (T2, Folios 5, 6):
(i)“Ms Cleary was granted DSP on 15 November 2000.
(ii)Ms Cleary has long-standing anxiety/depression which is currently under treatment by a psychiatrist with serious symptoms causing significant interference with interpersonal relationships.
(iii)Ms Cleary has long standing dependence on alcohol with reversible end organ damage in the liver.
(iv)Ms Cleary has asthma/chronic obstructive airways disease with reduces exercise tolerance between 6-7 METS.
(v)Ms Cleary has hypertension and high cholesterol controlled by medication.
(vi)Ms Cleary is unable to work 30 hours per week or be trained for such work within he next two years.”
The SSAT noted (at T2 Folio 3) that on 12 December 2005, Centrelink decided to cancel the DSP on the basis that Mrs Cleary’s impairment rating was less than 20 points.
HISTORY OF DSP FOR THE RESPONDENT
12. The only past DSP application which the applicant provided in the “T” documents was the “Record of Decision” following the review on 18 February 2003 (T36). The treating doctor’s report (Dr Andrew, T35, 31 January 2003), that was linked to the review, considered the following details on medical conditions:
· Condition 1: Depressive illness and anxiety.
· No other conditions were identified (apart from asthma) in the Treating GPs report.
13. Under the heading “Manifest Eligibility”, the decision-maker concluded that “the review indicates the customer is clearly eligible for DSP. A medical referral was not required.” The decision-maker confirmed that “based on the verified evidence” the respondent was not able to work for more than 30 hours per week within the next two years (T36, Folios 137, 138).
14. Based on a Work Capacity/Participation Assessment Report (T8, 14 November 2005), the respondent’s DSP was cancelled at the next review (T10) and this decision affirmed in a subsequent reconsideration by an Authorised Review Officer (T14, 16 December 2005).
15. The Work Capacity Assessment Report was undertaken by an allied health professional (an occupational therapist) of Advanced Personnel Management. The documentation supplied to the assessor did not include the treating doctor’s report or any specialist reports (T8, Folio 45). The entry pages for the treating doctor’s report (T8, Folio 46) is blank. In this report, the assessor for Advanced Personnel Management identified “anxiety/depression” as a Temporary Condition” (T8, Folio 54) and stated:
“Anxiety/depression rated as per treating doctor as temporary.” (See Question 18, T8, Folio 55).
16. The Work Capacity Assessment report recommended the following impairment ratings:
· Asthma (Table 1): 5
· Ear Infection (Table 20): 0 (temporary)
· Hernia (Table 11.1): 0 (temporary)
· Anxiety/Depression (Table 6): 0 (temporary)
17. In addition, the SSAT concluded that “it is apparent that the [psychiatric] report of Dr Richardson was not available to the authorised review officer”. (T2, Folio 4). Furthermore, the treating doctor’s report stated (at Question J), that the depressive illness and anxiety would remain unchanged within the next two years (T35, Folio 131).
Statutory Requirements and Relevant Case Law
18. The relevant legislation is the Social Security Act 1991 (“the Act”).
19. Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.
“Qualification for disability support pension—continuing inability to work
94.(1) [Qualification – continuing inability to work] 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;
…
Meaning of continuing inability to work
94.(2)[Meaning of ‘continuing inability to work] A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94.(3)[Secretary not to have regard to certain matters] In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.”
94(5) [Interpretation] in this Section:
…
‘work’ means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”
20. Schedule 1B of the Act, states in its Introduction to the Schedule:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
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.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible i.e. available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.”
(Emphasis added)”
The Tribunal’s Decision-Making Powers
21. There is only one decision possible – whether Ms Cleary is entitled to continue receiving the DSP from the 12 December 2005, the date it was cancelled. Accordingly, the question for the determination is whether the decision under review is the correct one.
22. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time
[See Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326]
23. Given that this application involves a continuing entitlement to DSP, the only period the Tribunal can consider evidence is based on the facts at a particular point of time - the date of cancellation of Ms Cleary’s DSP.
[see Freeman v Secretary, Department of Social Security (1988) 15 ALD 671]
EXPERT MEDICAL OPINION
24. There is divergent expert medical opinion before the Tribunal.
25. The reasoning of Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 N.S.W.R. 238 (Court of Appeals NSW) is significant with respect to the evaluation of medical evidence by our courts. At 242, Herron CJ stated:
"But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try” (Tribunal emphasis).
CONSIDERATION OF THE ISSUES
26. We have carefully considered all the evidence and information before us and arrived at conclusions that would apply at the date of DSP cancellation, 12 December 2005.
27. The diagnosis of the medical condition(s) suffered by the respondent is a central issue. If a diagnosis of alcohol dependence is accepted, then the issue of whether this condition has been fully treated and stabilised must be satisfied before an assessment of impairment points under the appropriate impairment Table can be made.
28. There is conflicting evidence between the opinion of Dr Kar and Dr Richardson as to the diagnosis of a depressive condition. In this regard, Dr Andrew’s medical opinion (the treating general practitioner of the respondent) is consistent with the medical opinion of Dr Richardson.
29. The primary diagnosis of Dr Kar is that the respondent has a severe and lifelong alcohol dependence and that there is no other mental illness or psychiatric symptoms that require treatment. It is Dr Kar’s opinion that the respondent’s alcohol dependence is by far her greatest problem and that it overwhelms any other possible emotional symptoms that she has. It is his opinion that the other symptoms of the respondent of an emotional or transient psychotic nature, are simply the product of heavy, chronic alcohol abuse.
30. Dr Kar states that according to the DSMIV classificatory system, “a secondary diagnosis of an Axis-I, or functional psychiatric condition, cannot be made in the presence of heavy substance abuse if the substance abuse can be considered to have caused the symptoms” (Exhibit 3).
31. Dr Kar states that any disability that the respondent has is due to her alcohol dependence and that this alcohol dependence condition is not stabilised.
32. Dr Kar further states that it is clear from the respondent’s history, that her alcohol dependence condition is untreated. That the respondent has never sought treatment from a drug or alcohol abuse – or any other appropriate service to treat her alcohol dependence in the past. This conclusion is inconsistent with Dr Andrew’s and the respondent’s own evidence that sporadic attempts for treatment for alcohol abuse had been made.
33. Notwithstanding that Dr Kar has provided extensive oral and written evidence relating to this application for review, we have the following concerns in relation to the medical opinion he has provided:
(a)The sole interaction Dr Kar had with the respondent was a two hour interview on 11 January 2007;
(b)Dr Kar saw the respondent at the request of the AGS; Dr Kar's two letters to Mr Cousins (i.e. Exhibits 3 and 4) arose from the assessment arranged by the AGS. Dr Kar's notes of the assessment state that at the time he saw the respondent, she “was not acutely intoxicated, not having had any alcohol that morning (Exhibit 3). Later on (Exhibit 5) he states that “she did not appear intoxicated and her breath did not smell of alcohol…. she co-operated fully with the assessment process. She may have been mildly anxious, but she was not overly anxious and she was not depressed or in distress. She readily answered the questions asked” (Exhibit 5). It is somewhat difficult to reconcile these observations of Dr Kar with the evidence of the respondent that she can get very violent and abusive when sober. When she is sober, lots of little things annoy her (Exhibit 2). The trait of annoyance was evident at the hearing as the respondent could not understand why her DSP had been cancelled and raised her concerns.
(c)However, what is particularly relevant is that Dr Kar has relied heavily on the uncorroborated history taken from the respondent in a two hour consultation upon which to base his diagnosis. In opening his discussion of his opinion in his report (Exhibit 5), Dr Kar concedes in his report (Exhibit 5) that: "The information I had was somewhat limited as I was limited to the history given to me by Ms Cleary. I did not have the benefit of previous reports" (vide Exhibit 5 page 7 paragraph 4). He listed the information that was available to him on page 1, paragraph 4 of Exhibit 5 as:
· the AGS instructing solicitor's letter to him;
· his interview with the respondent on 11 January 2007;
· DSM-IV;
· the Alcohol Use Disorders Identification Test (AUDIT);
· Mr Cousins' letter to him; and
· the results of his requests for her liver function tests and full blood examination.
Thus, he did not have available
· General Practitioner Dr Andrew's Treating Doctor's Reports of 2 November 2000 (T33 Folios 115-120) and 28 September 2005 (T6 Folios 33-40);
· Psychiatrist Dr Richardson's Treating Doctor's Report of 2 February 2006 (T22 Folios 86-93);
· Dr Andrew's report to Legal Aid Queensland of 27 October 2006 (Exhibit 7); and
· Dr Andrew's report to the Australian Government Solicitor of 17 December 2006 (Exhibit 6).
34. The uncorroborated history taken by Dr Kar, also needs to be considered in the context of the conclusions of the occupational therapist who undertook the Work Capacity Assessment, that the respondent has a “low formal education to Year 7” and “poor interaction skills, listening and concentration” (T8, Folio 49). In addition, the extent these limitations may have been compounded by alcohol and/or medication at the time of the interview in the history taken.
35. Dr Kar states: “Therefore apart from a serious problem of alcohol dependence, Ms Cleary does not appear (emphasis added) to have any important secondary (emphasis added) psychiatric diagnosis" (Exhibit 5); and that he "found no evidence [from the history taken] (emphasis added) to indicate that the [respondent] had any other chronic or serious mental illness" (Exhibit 3). However, when giving his evidence at the hearing, we took Dr Kar to page 5 of Exhibit 5, where he recorded the respondent's Developmental and Educational History, the opening paragraph reading:
'"Ms Cleary was traumatised as a child. She was apparently sexually abused by an uncle and this went on for many years. She said she did not receive any help and her mother did not believe her. She said that no-one was charged over the abuse. She has never had formal counselling for the abuse. Discussing this area was sensitive and she became tearful. I did not probe this issue further, but it was clear that there were issues that needed to be addressed".
We referred Dr Kar to the evidence that she had suffered these experiences before she started drinking alcohol when aged 16 years, at the time that her mother died. Dr Kar agreed that those experiences should be taken into account, in deciding whether there were pre-existing mood and anxiety factors before her alcohol dependence developed, adding that personality, genetic, attitudinal and social factors also had played roles.
36. A review of the above conclusions is relevant in that the qualification so raised by Dr Kar indicates that there is a possibility of other psychiatric conditions, other than alcohol dependence.
37. Accordingly, in these circumstances the legal principles in EMI (Australia) v Bes has application and requires the lay evidence and other medical evidence before the Tribunal to determine whether, on the balance of probabilities, a diagnosis of any other mental illness can be made.
38. Accordingly, we have addressed the material not made available to Dr Kar -the several reports from the respondent's two treating doctors, Drs Andrew and Richardson (T6 Folios 33-40, T22 Folios 86-93, T33 Folios 115-120, and Exhibits 6 and 7).
39. Dr Andrew has been treating the respondent since 1989 (Exhibit 1 Folio 118). In his report of 17 December 2006 (Exhibit 6), he states:
“Anxiety and Depressive symptoms and treatment are documented in Ms Cleary’s records as far back as at least July 1994. She has been on antidepressant and anti-anxiety treatment for most of the time since then, with various antidepressants having been tried (Zoloft, Deptran, Prothiaden, Lovan/Prozac and Mirtazon). On 21st September 2005 she was taking Lovan 20 mg x 1 daily, and currently still takes Lovan now x 2 daily, but has also been commenced on Mirtazon 30 mg x 1 at night by Ipswich and West Moreton Integrated Mental Health (Dr Drew Richardson)”.
40. Furthermore, in this report Dr Andrew states:
“Due to the long duration and the many medication changes leading to a stable treatment on Lovan regularly with support of anti-anxiety agents, I consider that she had been fully investigated and diagnosed, and her treatment was stabilising her problem as best as could be achieved at that time.”
41. Dr Andrew has also assessed the anxiety and depression condition that he had diagnosed under the Impairment Tables and assessed this condition at 20 points. He provides the following rationale: “With the benefit of a report from Ipswich and West Moreton Integrated Mental Health, I would now consider her to be classed as TWENTY as a history of psychosis and also suicidal ideation has been disclosed. Dr Richardson felt that she needed to remain on disability support pension indefinitely”. (Exhibit 6)
42. In terms of her “alcohol abuse” condition, Dr Andrew notes that the respondent has attended Alcoholics Anonymous sporadically and has attempted an alcohol withdrawal trial once only. Because of her long history of alcohol abuse he considers that there is a poor prognosis for resolution. (Exhibit 6).
43. Dr Richardson, then a staff member of the West Moreton Integrated Mental Health Service (T22, Folio 92), had himself been the respondent’s treating psychiatrist since 5 January 2006. In his treating doctor’s report of 2 February 2006 (T22, Folio 87) he diagnosed the respondent with “major depressive disorder leading to chronic multiple depressive episodes (MDE)”. In her “History” details and “Symptoms” he records:
“Chronic depression (since childhood) with fluctuations in context of chaotic home environment and alcohol abuse…” and “Low mood, suicidal ideation”.
44. Dr Richardson has detailed her current treatment of Lovan 40 mg in the morning, oxazepam 30 mg a night and psychotherapy. Under “Past treatment” he states “poor response to medications in past” and for “Future/planned treatment”, “ongoing therapy and medication management”. He recorded that the respondent is “usually compliant” with recommended treatment.
45. Regarding the impact of her condition on her ability to function Dr Richardson states (T22 Folio 88):
“ - poor energy and marked social avoidance
- reduced self care during bad periods
- poor motivation to focus on goals”
46. Dr Richardson recorded that he expected the impact of the respondent’s depressive disorder on her ability to function to persist for more than 24 months.
47. Dr Richardson has provided additional information (T22, Folio 91):
“- complex of very stressful home situation with 2 sons who abuse drugs
- Rhonda acts as ‘carer’ for her grandchildren on a regular basis and probably acts as their only stable support figure
- she has never worked and has some literacy issues”
48. The history taken, and symptoms described by Dr Richardson, based on 4-5 consultations with the respondent in 2006 (Exhibit 5, page 4 paragraph 1) differ from the opinion of Dr Kar. A similar situation exists between the opinion of Dr Andrew and Dr Kar. Dr Andrew has treated the respondent since 1989. The medical opinion and information before the Tribunal prepared by Dr Richardson and Dr Andrew was not challenged by the applicant. The applicant elected not to call these medical experts for cross-examination.
49. In her evidence before the Tribunal, the respondent points to chaotic and tragic events in her life around 1993-1994 which have caused serious depression for her. Further chaos in her life and a significant family tragedy (in 2002) have resulted in the depression continuing; the respondent blames herself for this outcome.
50. Based on a consideration of all of the lay evidence and expert medical evidence and information, we are satisfied that it is more probable then not, that the appropriate diagnosis for the respondent is “chronic depression leading to multiple depressive episodes”. This condition fluctuates as a function of a chaotic home environment and alcohol abuse.
51. We prefer the medical opinion of Dr Richardson and Dr Stephen to that of Dr Kar. Not only, have they the advantage of treating the respondent for a long period of time and being able to monitor and manage her treatment, but also to audit and verify their history taken, as well is ongoing symptoms, over sequential periods of time. Their diagnosis of a depressive condition is the resultant. In this regard, there are constraints in Dr Kar’s process of diagnosis that confound his conclusions and which we have discussed.
52. Given this conclusion we next turn to the assessment of impairment points under the Tables for the respondent’s “chronic depression”. We accept Dr Andrew’s assessment based on his long history of treating the respondent and the fact that it consolidates Dr Richardson’s opinion in the assessment of history and symptoms. That is, an impairment rating of 20 points applies. This impairment rating is also consistent with the SSAT decision that is the subject of this application for review.
53. It is not in dispute that the respondent has an impairment rating of 5 points for her asthma condition (T8 Folio 54).
54. Accordingly, the respondent satisfies subsection 94(1)(b) of the Act.
55. Given this finding, there is no need for us to consider whether the alcohol abuse condition has been fully treated and stabilised.
56. The next question for us to decide is whether the respondent satisfies the continuing inability to work provision of the Act (subsection 94(2)). In this regard, we place little weight in the Work Capacity Assessment Report prepared by Advanced Personnel Management (“APM”). The APM report so prepared gave an impairment rating of ‘0’ for the respondent’s depressive condition. We have found an impairment rating of 20 points. Accordingly, any conclusions that are based on 0 impairment ratings have no application to the respondent’s continuing inability to work. Similarly, because our findings that the diagnosed condition is “chronic depression”, we have not considered this statutory provision in terms of Dr Kar’s opinion; Dr Kar’s diagnosis was alcohol dependence.
57. We accept Dr Andrew’s expert medical opinion that the respondent is unable to work for at least three hours per week for the following reasons (Exhibit 7):
(a)“Ms Cleary has problems with depression and anxiety as well as alcohol abuse, and has had these for many years, with no improvement in her status despite attempts at intervention. I consider that she would not be able to deal with the routines and the stresses of daily employment as well as her own personal problems, without significant absenteeism.”;
(b)”The duration of time that these problems have been in existence, and the lack of improvement following actual or suggested intervention, suggests this is a long-term problem and resolution within a two year time frame is highly unlikely”; and
(c)“Although Ms Cleary may indeed be able to attend a vocational rehabilitation/retraining program, it is possible that she may not be able to cope with the stresses of this, and this may produce absenteeism. Furthermore even if she were able to be vocationally retrained, the same problems which would prevent her from working for 30 hours per week in her current employment abilities, would continue to prevent her from working in a new situation.”
58. Based on Dr Andrew’s expert opinion we find that Ms Cleary would be unable to work for at least 30 hours per week for the two year period following the cancellation of her DSP on 26 October 2005. In addition, we further find that Ms Cleary would be unable to undertake vocational or on-the-job training and rehabilitation which would enable her to return to work.
59. Accordingly, section 94(2) of the Act is satisfied.
60. We make the following observations about this application for review brought before us:
· At paragraph 15 of this decision we noted that it was triggered by a flawed understanding and application of medical issues by an occupational therapist.
· At paragraph 17, we have also has noted that, at the hearing of this matter, the SSAT concluded that the treating Psychiatrist's report was not available to the authorised review officer (T2 Folio 4).
· The matter then having been brought on appeal to this Tribunal, at paragraph 33 (c) of this Tribunal's decisions and reasons, we have further noted that, for the purposes of this hearing, Dr Kar was not provided by the AGS with the several reports available from the respondent's treating doctors, again including her treating Psychiatrist.
61. Accordingly, we are concerned that these oversights makes it difficult to reconcile how this application for review is consistent with the model litigant policy as well as the statutory obligations imposed by section 33(1)(AA), Administrative Appeals Tribunal Act 1975, and so we draw the attention of the Secretary of the Department of Employment and Workplace Relations to our concerns.
62. For all of the above reasons, the decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie and Dr B Morley, Members
Signed: ………………………………………..
Personal AssistantDate of Hearing 26 June 2007 at Ipswich
Date of Decision 22 November 2007
Counsel for the Applicant Ms E Ford of Counsel
Solicitor for the Applicant Australian Government Solicitor
Solicitor for the Respondent Mr P Cousins, Legal Aid Qld.
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