Eckersley and Department of Family and Community Services - [2001] AATA 798

DECISION AND REASONS FOR DECISION [2001] AATA 798

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/682
No Q2001/50

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mr Jeffrey Keith Eckersley
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date20 September 2001
PlaceCoffs Harbour

Decision      The decision under review is affirmed.
  ..............................................
  Ms S M Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - Impairment Rating - Continuing Inability to Work.

LEGISLATION
Social Security Act 1991 - ss 94(1), 94(2), 94(5), 100(3); Schedule 1B

AUTHORITIES
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467; (1997) 2 SSR 129c
McKinnon v Commonwealth of Australia & Ors [1998] FCA 1456

REASONS FOR DECISION

20 September 2001 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ('the Tribunal') by Mr Jeffrey Keith Eckersley of a decision made by the Social Security Appeals Tribunal (the "SSAT") on 7 December 2000 that he was not qualified to receive a Disability Support Pension. The SSAT's decision affirmed the decision of an Authorised Review Officer ("ARO") made on 26 September 2000 (T12, T13). The original decision to refuse Mr Eckersley's Disability Support Pension was made by a delegate of the Secretary of the Department of Family and Community Services ("the Department") on 23 August 2000 (T10).
A hearing was held before the Tribunal in Coffs Harbour on 14 August 2001. Mr Eckersley was self-represented and provided oral evidence. The Respondent, the Department, was represented by Mr P Kanowski, Departmental Advocate. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 – T14) and the following exhibits:

Exhibit Number    Description Date
A1      Letter from Dr C Knight, General Practitioner     27 April 2001
A2      Statement by Mr Eckersley 14 August 2001
A3      Letter to Mr Eckersley from the Registrar of the Social Security Appeals Tribunal 16 November 2000
A4      X-Ray Report by Dr C Raman concerning Mr Eckersley's left knee. 18 September 2000
R1      Respondent's Statement of Facts and Contentions     14 May 2001

The issue in this matter is whether Mr Eckersley is qualified to receive a Disability Support Pension. Specifically, the sub-issues are:
(a)Whether or not Mr Eckersley has a physical, intellectual or psychiatric impairment; and if so
(b)Whether or not Mr Eckersley's impairment rating is 20 points or more under the Impairment Tables contained within Schedule 1B to the Social Security Act 1991 ("the Impairment Tables") as required to satisfy subsection 94(1)(b) of that Act; and if so
(c)Whether or not Mr Eckersley has a continuing inability to work as required by subsection 94(1)(c) of the Social Security Act 1991.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act"). Section 94 of the Act deals with qualification for Disability Support Pension. As relevant, section 94 provides:
"Qualification for disability support pension
94(1) A person is qualified for disability support pension if:
the person has a physical, intellectual or psychiatric impairment; and
the person's impairment is of 20 points or more under the Impairment Tables; and
one of the following applies:
the person has a continuing inability to work;
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
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
the impairment is of itself sufficient to prevent the person from doing any work within the next two years; and
either:
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
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.
Note: for work see subsection (5)
…
(5)In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
that is for at least 30 hours per week at award wages or above; and
that exists in Australia, even if not within the person's locally accessible labour market.
…"
Section 100 of the Act deals with the commencement day for Disability Support Pension and as relevant states:
"…
Early claim
100(3) If:
(a) a person lodged a claim for a disability support pension; and
(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provision commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
…"

background

The following information is provided by way of background and the information contained within is not in dispute.

Mr Eckersley was born on 25 June 1954.
Mr Eckersley attended school, attaining his Higher School Certificate.
Mr Eckersley taught himself photography and also has undertaken two six months TAFE computer courses.
Mr Eckersley has worked variously as a train guard with the State Rail Authority, an Accounts Clerk and as a Travel Consultant. His most recent occupation was as a self employed photographer in a small business he commenced in 1990.
Mr Eckersley has had a number of serious motor vehicle accidents. In 1981/82, he had a motorcycle accident in which he sustained serious injury to his left knee. In 1995, Mr Eckersley had a motor vehicle accident when hit by a truck travelling at 80 kilometres per hour and from which he sustained injuries to his back. In 1998, he had two motor vehicle accidents when his motor vehicle was hit from behind by other vehicles.
On 15 August 2000, Dr M Greacen, Regional Medical Adviser, Health Services Australia (HSA), completed a Medical Assessment Report (T7). In relation to Mr Eckersley's back condition, Dr Greacen assigned a rating of five points under Table 5.2 of the Impairment Tables, noting a loss of one quarter the range of movement and with good sitting tolerance (T7, p62). In relation to Mr Eckersley's neck condition, Dr Greacen assigned a rating of ten points under Table 5.1, noting a loss of half the normal range of movement (T7, p61).
In relation to Mr Eckersley's left knee condition, Dr Greacen assigned a rating of ten points under Table 21 for Intermittent Conditions. Dr Greacen noted there was pain causing minor interference with walking/squatting. The duration of the intermittent attacks was prolonged and occurred with a frequency of between 40 and 100 days per year (T7, p63).
In relation to depression, Dr Greacen noted that Mr Eckersley had poor concentration, memory and motivation. Dr Greacen did not rate this condition, as it had not been treated or stabilised because Mr Eckersley had not accepted any treatment for his depression. Dr Greacen concluded:
"…His main problem is chronic depression, low self esteem & demotivation relating to a combination of problems. Currently he is unfit for work as a result, but he has not yet sought treatment and the condition cannot therefore be described as optimally treated & stabilised. It should be considered "temporary" therefore, until a treating psychiatrist indicates that it is likely to prevent him from working for at least 2 years…" (T7, p70)

On 19 September 2000, Dr C Knight, General Practitioner, reported that Mr Eckersley suffers from moderate to severe left knee pain about once per week at which time he is hardly able to walk at all and has to rest for about 12 hours. Dr Knight reported that Mr Eckersley has patello-femoral arthritis on X-ray sufficient to be causing this pain. Dr Knight opined that Mr Eckersley has a ten points disability under Table 4 of the Impairment Tables (T8, p73).
On 23 August 2000, Mr Eckersley was advised that his Disability Support Pension claim had been refused (T10). The departmental delegate had noted that Mr Eckersley's impairment rating was less than the requisite 20 or more points required by section 94 of the Act.
On 26 September 2000, an ARO decided to increase Mr Eckersley's impairment rating to 25 points, but concluded that Mr Eckersley was able to undertake at least 30 hours work per week or be retrained in the next two years. Accordingly, the ARO determined that Mr Eckersley did not qualify for a Disability Support Pension (T13).
On 30 October 2000, Mr Eckersley lodged an application for review to the SSAT (T14).
On 7 December 2000, the SSAT affirmed the ARO's decision, deciding that Mr Eckersley's impairment rating was 13 points made up of:
Back              Table 5.2        5 points
Neck            Table 5.1        10 points
Left knee      Tables 4/21    Nil points
Depression   Table 6            unable to be rated because the condition   was not fully documented or stabilised
In relation to Mr Eckersley's left knee, the SSAT decided that on the evidence, the left knee pain caused minimal demonstrated loss of function. In relation to depression, while this condition was claimed and reported on by Dr Knight and Dr Greacen, because Mr Eckersley had not obtained any treatment, under the Impairment Tables it was not a fully documented condition which had been treated and stabilised. The SSAT concluded therefore that the condition of depression must be considered to be "temporary" under the terms of the legislation and could not attract an impairment rating (T2).
On 15 January 2001, Mr Eckersley lodged his application for review to the Tribunal noting:
" SSAT never advised that medical impairment was to be reviewed, otherwise I would have brought X-ray and Medical Report. The SSAT valuation of nil for my left knee impairment is incorrect. Dr Knight and Health Services Australia both rated the impairment at 10 points. The impairment in my left knee matches the 10 point evaluation table.
Paragraph 18 & 19 in the SSAT decision is incorrect ."(T1 p2).

Evidence of Mr Eckersley

Mr Eckersley told the Tribunal that he obtained his New South Wales Higher School Certificate. He had previously worked as a train guard for State Rail Authority, as an Accounts Clerk and as a Travel Consultant in 1983 for approximately one and half years.
Mr Eckersley told the Tribunal that he commenced a photographic business in 1990/1991 and this continued until 1995. He started the business on a small scale but was increasing his business activity every year until his motor vehicle accident in 1995. Mr Eckersley explained that he mainly undertook wedding photography but in recent times no one would engage him. Mr Eckersley noted that in the year 2000, the business earned $2,000.00 gross and in the financial year 2000/2001, he also earned approximately $2,000.00 gross for three photographic assignments.
Mr Eckersley told the Tribunal that in relation to his back condition, he experienced a dull ache or pain in the middle of his back every day. For the past three or four years, he has been taking one "Codral Forte" tablet every day after lunch for pain. This medication prescribed by Mr Eckersley's General Practitioner, Dr C Knight, provides partial pain relief. Mr Eckersley stated that he also has a fortnightly massage which provides some relief for his pain. While Mr Eckersley has had physiotherapy in the past, he does not currently have any physiotherapy, nor does he consult with an orthopaedic specialist. The effect of Mr Eckersley's back condition limits his activities. He is unable to undertake active physical work such as getting up on the roof, cleaning gutters or bending or lifting heavy items. Mr Eckersley told the Tribunal that mostly his son mows the lawns, but if he has to do it, he can only mow for about five minutes at a time. Mr Eckersley stated that he has to lie down every day to try to relieve his pain. He can undertake activities for short periods such as washing dishes and putting dirty washing in the washing machine. Mr Eckersley can drive his motor vehicle, but again only for short periods of up to a maximum of 30 minutes. After this time, he must stop the car and get out to have a walk. Mr Eckersley does not undertake any back exercise for this condition.
In relation to his neck condition, Mr Eckersley explained that his neck pain fluctuates, with some days worse than others. His neck pain is usually associated with migraine headaches. Mr Eckersley stated that he suffers neck pain every two or three days, with migraine headaches. If Mr Eckersley overexerts himself or does not rest, his neck pain will be very severe. Mr Eckersley considers that his neck pain and migraine headaches are the conditions which impact upon him most severely. Mr Eckersley told the Tribunal that during the hearing his neck and back pain were present.
Treatment for Mr Eckersley's neck condition consists of daily medication of one Codral Forte tablet and a fortnightly massage. Mr Eckersley also has a special pillow for his neck and has to ensure, if sitting for prolonged periods, that he is in a proper posture with his pillow.
Mr Eckersley told the Tribunal that his left knee condition arose out of a motor cycle accident. Mr Eckersley explained to the Tribunal that immediately after the accident, his kneecap was "smashed" and his bone was protruding through the skin. It was a very serious injury, Mr Eckersley stated.
Mr Eckersley acknowledged that the effects of his left knee condition fluctuate. He has constant pain but on occasion, the knee gives way, and is so painful, that he cannot walk on it and has to go to bed until the next day, when he is usually once again able to walk on it. Mr Eckersley stated that in the last six months, he has had seven episodes when he has been "totally incapacitated" by his left knee. Codral Forte also helps the left knee pain.
In relation to the SSAT finding that Mr Eckersley's left knee pain causes minimum demonstrable loss of function, Mr Eckersley strongly disagreed. He stated that he did not believe that he had told the SSAT that about four days of the year was the extent of his experiencing episodes when the knee had given away and he could not walk on it. Mr Eckersley reiterated that most days he is in pain, but there are other days when the pain is so extreme that he is unable to walk on his left leg because of his knee. Mr Eckersley could not understand, given the incapacity he suffers from the left knee, that the SSAT could have possibly given him a nil impairment rating. Mr Eckersley stated the SSAT also did not give him the opportunity of discussing why Dr Greacen had given a higher rating. It was never raised, he pointed out to the Tribunal, despite being "cross examined" by the SSAT for 90 minutes. While Mr Eckersley acknowledged that his knee condition fluctuates, he also stated that it is constantly aching or with pain. In addition, there are other days, for example seven days within the last six months, during which he is totally incapacitated by his left knee to the extent that he is unable to walk on his left leg.
Mr Eckersley explained to the Tribunal that he did not know that the SSAT was going to discuss his medical conditions. He stated that he had not been told that this would occur and he was not prepared with either additional doctors' reports or with feeling fully able to discuss his conditions.
Mr Eckersley stated that he often feels that he "cannot be bothered and feels apathetic". In addition to his physical problems, he also has the stress of caring for his wife who has been suffering with schizophrenia for the past seventeen years, since the birth of their son. It is a very hard life with his wife, caring for her and for their two children. Mrs Eckersley has had frequent admissions to hospital including one recently when she was an in-patient for three weeks in the Psychiatric Unit of the local hospital. Mr Eckersley stated that he is also concerned about being unemployed. Mr Eckersley stated that he is not suicidally depressed. He is also not depressed everyday. Mr Eckersley believes that his depression has its inception from his first car accident.
Mr Eckersley has not taken any medication for depression as recommended by his General Practitioner, Dr Knight. He has seen what medication has done to his wife, making her "groggy" and he does not want to be like that. Dr Knight has also recommended counselling from a psychologist who Mr Eckersley recalled was at Coffs Harbour Hospital, but he has not attended. Mr Eckersley stated at the hearing that if Dr Knight considered that he would benefit from either medication and/or counselling, then he would undertake any recommended treatment.
Those living at home include Mr and Mrs Eckersley, their seventeen-year-old son who is an apprentice plasterer and a fifteen-year-old daughter who is still at school but who works part-time as a check-out operator. Mr Eckersley used to be the pivotal person in the household caring for his wife and his children, but since the children are now older they are more independent and able to look after themselves.
Mr Eckersley told the Tribunal that he consults with Dr Knight perhaps every two months for the provision of further prescriptions. Dr Knight does not provide counselling and Mr Eckersley stated that he does not talk to Dr Knight much about how he is feeling.
In terms of work, Mr Eckersley stated that he does not believe that he can work now because of his pain and because the Codral Forte medication makes him groggy. He also feels he cannot be bothered and becomes apathetic, particularly when he is feeling depressed. Mr Eckersley has however, tried to obtain work, particularly as a photographer and he places advertisements in the local paper. He most recently did this some weeks prior to the hearing when he placed an advertisement in the local paper's wedding supplement. Mr Eckersley told the Tribunal that he has even offered to work for free, particularly in computer businesses, but no one will take him on. Prospective employers say they are too busy, ask him to leave his name or submit his resume and state they will contact him later.
Mr Kanowski, Departmental Advocate, referred Mr Eckersley to his statement to the SSAT in which he is reported to have said that he views the receipt of a Disability Support Pension as a "stepping stone". In this regard the SSAT reported that because Mr Eckersley cannot secure work in Coffs Harbour in his area of expertise, the receipt of the pension would give the family security to move around and seek suitable work. Further, Mr Eckersley is reported to have said that the security of a Disability Support Pension would allow him to undertake some more training in the Information Technology area and further improve his job prospects (T2 p2). Mr Eckersley told the Tribunal that this was an example of how, when he had been honest with the SSAT, his statements were turned against him. He stated to the Tribunal that he had told the SSAT that he did not wish to be on the Disability Support Pension forever as he wants to become well and to be able to work. His comments to the SSAT were taken out of context, Mr Eckersley told the Tribunal and his evidence to the SSAT had been twisted around to portray him in a poor light.

Mr Eckersley told the Tribunal that he has tried to find part-time or full-time work and light duties. He does not know why he has been unsuccessful and thought that it might be something to do with his personal attributes or that it could be a conspiracy.
If he was offered work, Mr Eckersley stated that he would try it but felt uncertain as to his ability to cope.
Recent Medical Evidence
Dr C Knight, General Practitioner
Dr Knight provided a letter to Centrelink dated 27 April 2001 (Exhibit A1). He noted in relation to Mr Eckersley's left knee condition that there had been exacerbations of his problems late in 2000 when he had three episodes in which his knee had collapsed. Dr Knight noted that Mr Eckersley "stated that he couldn't climb a ladder and that his ability to walk in a similar manner to his peers was impaired."
In relation to Mr Eckersley's depressive illness, Dr Knight reported that this condition is a combination of reactive and endogenous depression. Dr Knight noted that the reactive element of Mr Eckersley's depression is due to his chronic pain and also the constant trauma that he suffers as a result of living with his schizophrenic wife. Dr Knight opined that Mr Eckersley is also suffering from a degree of chronic pain syndrome as a result of his "ongoing hip, headache, backache and knee pain".
Dr Knight reported that the use of antidepressant medication was discussed with Mr Eckersley. Mr Eckersley declined to accept this form of therapy. A further suggestion was made to Mr Eckersley by Dr Knight that he should undertake some counselling; however, Mr Eckersley did not feel that this was appropriate either. Despite the fact that Mr Eckersley has not accepted either of these forms of treatment, this does not mean, Dr Knight concluded, that either of these forms of treatment would have a successful outcome. It is Dr Knight's opinion that Mr Eckersley's refusal of this treatment does not discount the fact that he does have an ongoing depressive illness.
Dr Knight thought it was a most unlikely outcome that Mr Eckersley would be able to work at least 30 hours per week at award wages. Even when Mr Eckersley was working in his photography business, he was not working anywhere near 30 hours per week, Dr Knight noted. Although in the next two years Mr Eckersley may be able to do some degree of part-time work, his ability to work thirty hours is extremely unlikely, Dr Knight reported. Dr Knight concluded that Mr Eckersley fulfils the criteria for a Disability Support Pension as required by the Act.
SUBMISSIONS
Mr Eckersley submitted that he had been assessed by Dr Greacen as having 25 impairment points and also by the ARO at the same level. The SSAT however had taken these points away from him. Mr Eckersley submitted that his General Practitioner supported this impairment rating. The 25 impairment points assigned by the HSA Medical Adviser and the ARO take into account the condition of Mr Eckersley's left knee which is truly significant and causes incapacity. Mr Eckersley submitted that the SSAT took his evidence out of context, and gave him little notice so that he could prepare his case properly. He further submitted that the Department has been "elusive and deceptive" about this matter.
In relation to work, Mr Eckersley submitted that he wants to work but whether he can or has the ability and capacity given his health and the state of his family is not certain.
Mr Eckersley contended that Dr Knight's letter indicated that he cannot work and the nature of his conditions include depression, a back problem, neck and elbow problems, all of which make him eligible for a Disability Support Pension.
Referring specifically to his left knee and reading the description for ten points under Table 4 of the Impairment Tables, Mr Eckersley noted that he has a demonstrable loss of strength, mobility, stability and balance, causing moderate interference with walking and squatting, sitting or kneeling, with the pain restricting his walking to a maximum of 500 metres at a slow or moderate pace of four kilometres per hour. Mr Eckersley noted that he is able to walk further after resting. This description of the ten-point category under Table 4, Mr Eckersley submitted, fitted exactly his left knee condition.
Dr Greacen had assigned an impairment rating of ten points under Table 21 for his left knee because of the intermittent nature of the condition. Dr Greacen had noted that Mr Eckersley had pain in his left knee causing minor interference with walking and squatting which occurred over a prolonged duration of between 40 and 100 days per year. The reason Dr Greacen's assessment in the medical review form had been amended was because, Mr Eckersley submitted, the doctor had incorrectly added up the various impairment ratings.
Mr Eckersley contended that Dr Greacen, Dr Knight and indeed the ARO had all assigned him a rating of 25 points. It was only the SSAT and the Departmental delegate who had assigned a rating below 20 points.
In relation to his depression, Mr Eckersley noted that he definitely suffers from depression and is now willing to undergo treatment as recommended by Dr Knight.
In all the circumstances, Mr Eckersley submitted that the correct impairment rating for all of his conditions is 25 points and that he has a continuing inability to work. He concluded that he is thus qualified for a Disability Support Pension.
Mr Kanowski, for the Department, submitted that the following ratings are appropriate:

Condition     Table Impairment Rating
Back   5.2      5
Neck   5.1      10
Left Knee      4         0
Depression   No rating is assigned for depression

Specifically in relation to the chronology of this matter, Mr Kanowski referred the Tribunal to the filenote of the ARO (T12), that Mr Eckersley's Disability Support Pension had been rejected initially by the delegate because he had been assessed at less than 20 impairment points. Later, on 20 September 2000, the Department had been provided new information from Dr Knight concerning Mr Eckersley's left knee. This new medical information was referred to Dr Greacen for reconsideration and on 25 September 2000, Dr Greacen assigned a new assessment of ten points for the left knee. Thus the impairment assessment was brought up to 25 points. HSA still considered however that Mr Eckersley was fit for work for the next two years. Dr Greacen had concluded that the main cause of Mr Eckersley's inability to work was his depression, but because this condition had not been properly documented, treated and stabilised, it could not be assessed. Dr Greacen concluded further that Mr Eckersley could do light work if his depression was treated.
Referring to Mr Eckersley's left knee condition, Mr Kanowski submitted that under Table 4, the correct rating is nil to reflect that Mr Eckersley can walk without difficulty on a variety of different surfaces at varying speeds for a distance of more than 500 metres. If the left knee condition was alternatively rated under Table 21 for Intermittent Conditions and, noting Mr Eckersley's evidence of seven episodes of severe incapacity in the last six months, if this were extrapolated to 14 instances per year, then using the various subtables within Table 21, Mr Kanowski submitted that with "prolonged" activity, a severity level "D" and a frequency of 14 days per year, this would provide a nil rating under Table 21. Mr Kanowski submitted that the 40+ days per year assigned by Dr Greacen is not accurate, given Mr Eckersley's evidence. Considering Dr Knight's evidence concerning the left knee as reported on 27 April 2001, Dr Knight had been referring to an exacerbation of the condition and this should not have been extrapolated out as Dr Greacen had done in his assessment.
Mr Kanowski also referred the Tribunal to the SSAT's conclusion that Mr Eckersley's evidence to it was "starkly inconsistent" with Dr Greacen's impairment rating. Mr Eckersley's evidence to the SSAT was that his knee condition caused minor functional impairment in performing work associated with tasks such as his photography and retail work.
Mr Kanowski concluded that the appropriate rating for the left knee condition is nil points under either Table 4 or 21.
In relation to Mr Eckersley's condition of depression, Mr Kanowski referred the Tribunal to the Introductory Notes to the Impairment Tables which state:
        " …
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 ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of the 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…"

Mr Kanowski submitted that Mr Eckersley's condition of depression, while noted by Dr Knight and Dr Greacen as present, has not been treated or stabilised and in these circumstances cannot be considered permanent for the purpose of assessing qualification for Disability Support Pension. Dr Greacen states that Mr Eckersley needs treatment (T7, pp68, 70). Dr Knight, in his letter of 27 April 2001 (Exhibit A1), notes treatment in the form of antidepressant medication or counselling had been recommended by him to Mr Eckersley but Mr Eckersley had declined at that time to accept any form of treatment. It is clearly the opinion of Dr Greacen, Dr Knight and Mr Eckersley himself that his depression does affect his ability to work. As Mr Eckersley noted, when he is depressed he feels apathetic and cannot be bothered to do anything, having the attitude that he does not care. Noting the Introduction to the Impairment Tables covering refusal to take treatment, Mr Kanowski submitted that the reason Mr Eckersley does not wish to take treatment relates to Mr Eckersley's observation of the effect of medication on his wife and he does not wish to experience the same effects on himself. Mr Kanowski submitted that while Mr Eckersley might hold this view, there is nothing intrusive about counselling and that it would be reasonable for Mr Eckersley to at least try this form of treatment. He submitted that a nil impairment was appropriate for the condition of depression.
In all the circumstances, Mr Kanowski contended that Mr Eckersley's impairment rating was less than 20 points and even if the Tribunal disagreed with this and found an impairment rating of 20 points or more, Mr Eckersley does not have a continuing inability to work. In so submitting, Mr Kanowski referred the Tribunal to Dr Greacen's opinion (T7, p70) that the major factor preventing Mr Eckersley from returning to work is his depression. In the absence of treatment for this condition and it therefore being considered stabilised, it cannot be considered in deciding whether Mr Eckersley is capable of working or being retrained within two years. Mr Kanowski noted that not withstanding Mr Eckersley's medical conditions, he was able to maintain his own business. Further, Mr Kanowski noted Mr Eckersley's willingness to work, if it were available, or to be retrained. Mr Kanowski concluded that Mr Eckersley does not have a continuing inability to work and is therefore not qualified for receipt of a Disability Support Pension. In those circumstances, Mr Kanowski contended that the decision of the SSAT should be affirmed.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, submissions, legislation and case law.
The Tribunal considers that Mr Eckersley provided truthful evidence.
Each of Mr Eckersley's conditions will be considered in turn.
Neck condition - Table 5.1
The Tribunal accepts that Mr Eckersley has constant pain in his neck associated with migraine. Medical examination has indicated a loss of half the normal range of movement and accordingly the appropriate rating is ten points under Table 5.1.
Back condition – Table 5.2
The Tribunal notes that there is constant pain and a loss of one quarter of the normal range of movement. This description of the symptoms equates to five points under Table 5.2.

Left knee condition – Table 4

From the evidence to the Tribunal and to the SSAT, the Tribunal finds that Mr Eckersley experiences discomfort and pain on most days. This is then exacerbated by very painful episodes when in fact Mr Eckersley's left knee gives way and he is unable to walk on it. On such occasions, Mr Eckersley must rest in bed until the next day.
Based on Mr Eckersley's evidence and the medical evidence, the Tribunal does not agree with the SSAT's finding that his left knee condition causes minimal functional impairment. The Tribunal finds that after walking 500 metres he must rest. Turning to Table 4 of the Impairment Tables, the Tribunal finds that the appropriate rating is ten points to reflect reduced ability to walk distances of 500 metres or less and that this is done at a moderate pace and Mr Eckersley can walk further after resting.
In relation to Table 21, this deals with intermittent but continuing disorders which remain asymptomatic between discrete episodes of impairment such as from gout, epilepsy and Meniere's Disease. The Tribunal does not find that Mr Eckersley's left knee condition is asymptomatic between episodes. His evidence, which the Tribunal accepts, is that there is pain present all the time and restriction present in walking, for example when mowing the lawn and getting up on ladders to clear the gutters. Hence the Tribunal has not applied Table 21 noting that:
"…For acute exacerbations of chronic disorders, where the acute relapses are frequent and severe, the Intermittent Tables can be used in addition to the primary score derived for the underlying medical conditions eg. frequent attacks of acute bronchitis can be scored using Table 21 in addition to Table 1 or 2 for Chronic Airways Limitation and the scores added together…" (Table 21, Schedule 1B of the Act).
The Tribunal also notes that in the explanation for Table 21 it is specifically stated that some intermittent disorders may be rated using system-specific tables and these can be used in preference to the Intermittent Tables.

Depression

Clearly, Mr Eckersley suffers from depression which is described by Dr Knight as being both endogenous and reactive. The Tribunal finds that depression is present and it impacts significantly upon Mr Eckersley's functioning in everyday activities and also in terms of his ability to work. Mr Eckersley has had a hard life and the Tribunal notes his wife's schizophrenia having being present for some 17 years. It appears that Mr Eckersley has been the primary care giver for his wife. He also suffers from chronic pain, the trauma of caring for his wife and being unemployed. Mr Eckersley describes being apathetic and often not caring about anything. Treatment has been recommended by his General Practitioner, Dr Knight and by the Health Services Australia Medical Adviser, Dr Greacen, in the form of antidepressant medication or counselling. Until the hearing in this matter, Mr Eckersley had declined any medication because he has seen how medication effects his wife making her "groggy" and he does not want this to happen to him. He has also declined counselling.
In noting Mr Eckersley's very real depressive illness, the symptoms of which were manifest at the hearing, the Tribunal must also note the requirements of the Impairment Tables that for a condition to be considered permanent it must be diagnosed, treated and stabilised. Certainly Mr Eckersley's condition has been diagnosed but it has not been treated or stabilised. Depression impacts significantly on Mr Eckersley's functioning and his work ability, the Tribunal finds.
Noting the Impairment Tables, there are circumstances in which a claimant may refuse treatment for compelling reasons and in those circumstances, a medical officer may conclude that:
"…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…"
(Introduction to the Impairment Tables).
In Dragojlovic v Director-General of Social Security (1984) 1 FCR 301, this matter dealt with Invalid Pension under the Social Security Act 1947. The Federal Court noted:
"…it has been felt to be unsatisfactory that a person who refuses to undergo treatment which would probably cure his incapacity and which it would be reasonable, objectively regarded, for him to undergo, should qualify for a pension. Common sense suggests that it would be unfair that the community should pay a pension to such a person. As a result, it has been thought proper to import, by analogy, the notion that incapacity which is curable by the adoption of measures which it is objectively reasonable to take, is not permanent incapacity.
…
…However, it is one thing to approach the problem having in mind persons who genuinely, because, for instance, of religion or fear cannot adopt remedial medical treatment and whose situation has nothing to do with entitlement to a pension and another to approach the problem having in mind persons who are incapacitated for want of medical treatment, if that want is but the result of a tactical exercise designed to obtain a pension which lacks bona fides
…
…In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal if genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse…."

In Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467, that Tribunal considered that the approach taken in Dragojlovic v Director-General of Social Security (supra) continued to be relevant in relation to refusal to take treatment under the Act. That Tribunal had to deal with the question of whether or not a condition had been investigated, treated and stabilised, which is a precondition to assigning an impairment rating under Schedule 1B to the Act.
In McKinnon v Commonwealth of Australia & Ors [1998] FCA 1456, the Federal Court noted the need to balance the evidence of harm to the plaintiff, in this case, the Applicant, Mr Eckersley, as compared to the interest of the defendant or the respondent. The issue considered by the Federal Court was that the more severe the risk, the greater it would outweigh the interests of the defendant (or respondent). The less severe the risk, then the more difficult the balancing process between the competing interests. If the risk from treatment was so very slight as not to constitute a real risk, an applicant's fear about a suggested risk would not outweigh the interests of justice that a defendant (or respondent) be entitled to defend the case, as thought fit. Hill J concluded in that case that if the risk were considered to be a real one, then the Federal Court would be slow to impose treatment upon an applicant or a plaintiff.

Mr Eckersley has to date refused to attend either counselling or take medication. His objection to medication may be understandable based on his experiences with his wife's medical treatment for schizophrenia. His non-acceptance of counselling from a psychologist has not been explained and certainly the Tribunal does not consider such attendance of itself would pose any risk or harm to him. As such, the Tribunal finds that the non-acceptance of counselling cannot allow it to disregard the requirements of the Impairment Tables to have a condition treated and stabilised. Accordingly, considering the evidence and the case law, the Tribunal finds that no impairment rating can be assigned for depression at this time.
The Tribunal notes that at hearing Mr Eckersley stated that he would now take Dr Knight's recommendations for treatment. The Tribunal encourages him to do so and if he were to take such action and accept some form of treatment, then it would be necessary, if Mr Eckersley wishes to pursue his claim for Disability Support Pension, to complete a new claim to reflect the change in circumstances in the event that he did elect to have his depressive condition treated. Mr Eckersley's application for Disability Support Pension could then be assessed to ascertain whether he qualifies. In those circumstances as outlined, depression would then be able to be assessed under Table 6 of the Impairment Tables which covers psychiatric impairment. Certainly, on the Tribunal's assessment of the evidence as to the severity of Mr Eckersley's depressive condition, the depression significantly impacts upon his functioning.
In all the circumstances, the Tribunal finds that the combined impairment rating for Mr Eckersley's conditions is 25 points, consisting of ten points under Table 4 for his left knee condition, ten points for Mr Eckersley's neck condition under Table 5.1 and five points under Table 5.2 for Mr Eckersley's back condition. No rating is assigned for depression.
Thus Mr Eckersley meets the requirements for subsection 94(1)(b) of the Act, having achieved an impairment rating of 20 points or more.
The Tribunal now turns to the consideration of subsection 94(1)(c) of the Act, which requires that Mr Eckersley has a continuing inability to work or retrain within the next two years. Mr Eckersley's depressive condition currently has a significant impact on his inability to work. With treatment this may improve, or as Dr Knight noted, it may not. This has yet to be tested. Certainly on the current conditions, as able to be rated by the Tribunal, the Tribunal is of the view that Mr Eckersley would be able to take on light duties such as working with computers or as a photographer. Mr Eckersley has stated that if he were offered a job, he would try to undertake it. He has also continued to advertise in the local newspaper's wedding supplement but he has only achieved one offer of work. It may be that Mr Eckersley has been unsuccessful in achieving work because of his depression, the way he presents himself or because there is simply not enough work within his local area. These are all matters that the Tribunal is unable to take into account given the legislative requirements for qualification for Disability Support Pension contained within section 94 of the Act. In all of the circumstances, the Tribunal finds that at this time Mr Eckersley does not have a continuing inability to work and hence does not satisfy subsection 94(1)(c) of the Act.
For all the reasons set out above, the Tribunal finds that Mr Eckersley does not satisfy all of the qualifying criteria for a Disability Support Pension as contained in section 94 of the Act. Therefore, the Tribunal decides that at this time, since Mr Eckersley is not qualified for a Disability Support Pension, then the decision under review must be affirmed.
If Mr Eckersley were to have his depression treated and therefore stabilised, he may then choose to retest his qualification for Disability Support Pension.
Accordingly, under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that in all the circumstances of this case, the decision under review is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.
Signed:         .....................................................................................
  Stella Vaughan, Associate
Date of Hearing  14 August 2001
Date of Decision  20 September 2001
Representative for the Applicant             Self Represented
Representative for the Respondent        Mr P Kanowski, Departmental Advocate, Brisbane