Helen Taylor and Secretary, Department of Social Services

[2014] AATA 705

[2014] AATA 705 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0137
Re	Helen Taylor
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mark Hyman, Member
Date	26 September 2014
Place	Canberra

Mrs Taylor’s spinal condition is fully diagnosed treated and stabilised and attracts a rating of 10 points under the Impairment Tables. Mrs Taylor’s depression is fully diagnosed but not fully treated or stabilised. The decision under review is affirmed.

................................[sgd]........................................

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – application for disability support pension – claimant suffers from spinal condition and depression – whether spinal condition fully diagnosed, treated and stabilised – whether depression fully diagnosed, treated and stabilised – depression not fully treated – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 37

Social Security Act 1991 s 94

Social Security (Administration) Act 1999, ss 41, 42 and Schedule 2

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

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

Cases

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

REASONS FOR DECISION

Mark Hyman, Member

26 September 2014

1. The applicant, Mrs Taylor, suffers from a number of disabling conditions, including a back ailment that causes her considerable pain, and depression. Mrs Taylor applied in March 2013 for disability support pension (DSP). Her claim was rejected and that decision was subsequently affirmed by an Authorised Review Officer in the Department of Human Services. Mrs Taylor sought review by the Social Security Appeals Tribunal, which affirmed the rejection of her claim. Mrs Taylor has now sought review by this Tribunal of the Social Security Appeals Tribunal’s decision.

   Issues

2. To qualify for DSP a person must apply for the benefit, and the application is then assessed against the claimant’s condition or conditions at the time of the claim and over the following 13 weeks. To succeed, the claimant must have one or more impairments and in respect of that impairment or those impairments pass a series of tests related to the severity and permanence of the impairment or impairments, and to his or her capacity to work. The issues before me therefore are:

   (a)whether Mrs Taylor, at the time of her claim on 5 March 2013 or in the 13 weeks following, suffered from a physical, intellectual or psychiatric impairment;

   (b)whether Mrs Taylor’s impairments attracted a rating of 20 points or more on the Impairment Tables; and

   (c)whether or not Mrs Taylor had a continuing inability to work.

3. It is accepted that Mrs Taylor suffers from one or more impairment as defined in the Social Security Act 1991 (the Act). It is whether or not Mrs Taylor passes the tests of severity, permanence and capacity to work that is to be decided in this review.

   The Hearing

4. A hearing was held on 11 August 2014. Both applicant and respondent attended by telephone. Mrs Taylor was represented by Mr Shaun Peters of Disability Advocacy NSW. Ms Charlene Gerrard, a Centrelink advocate, represented the Secretary, assisted by Ms Alice Linacre.

5. Mrs Taylor gave oral evidence at the hearing. Documentary evidence was available in the documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T-documents’) together with additional papers comprising letters from a government lawyer at Centrelink, Ms Kate Martini to Mr Quentin Dignam, a clinical psychologist, and to Dr Kim Peters, Mrs Taylor’s general practitioner, both dated 12 March 2013 but apparently in fact sent on 12 March 2014 (exhibit R5); a response by Mr Dignam dated 28 March 2014 (exhibit R3); a response by Dr Peters, dated 17 April 2014 (R4); and a classified advertisement in the Northern Daily Leader of 4 April 2014 announcing Dr Peters’ retirement on 17 April 2014 (R5).

   The Legislative Context

6. Eligibility for disability support pension (DSP) is governed by s 94(1) of the Act. It provides, so far as is relevant for present purposes, that a person is eligible for DSP 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)(i) the person has a continuing inability to work.

   …….

7. The operation of the above provision is affected by Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). Section 41 of the Administration Act provides that a person’s benefit is payable from their start day, and s 42 provides that their start day is as set out in Schedule 2 to the Administration Act. Schedule 2 sets out the start date rules for social security benefits generally. Clause 3 states that if a person qualifies for a benefit when they apply, their start date is the date of claim. Clause 4(1) states that if the person is not qualified at the date of claim but becomes qualified within the following 13 weeks, their start date is the date they become qualified. The effect of these provisions, taken together, is that there is a period of 13 weeks from the date of claim in which a person’s qualification for DSP is to be determined. If a claimant’s disability worsens or otherwise changes after that 13 week period (the relevant period) that cannot be taken into account and a new claim might need to be lodged.

8. The test for qualification under paragraph (b) of section 94(1) is set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The Impairment Tables include a substantial introduction, which sets out general principles in subsections 5(2) and 5(3), and then more detailed guidance in sections 6 to 11. The tables of impairments follow, each table relating to a specific kind of loss of function, and each including further guidance on how it is to be used.

9. For present purposes it is relevant that the tables are function based rather than diagnosis based (s 5(2)(b)); that an assessment must be based on what the person can do rather than what that person may choose to do (s 6(1)); that the person’s medical history must be considered before the tables are applied (s 6(2)); that an impairment rating may only be assigned if a condition is permanent and likely to persist for more than two years (s 6(3); that a condition is permanent if it has been fully diagnosed, treated and stabilised (s 6(4)); and that an assessment of whether a condition is fully treated must include consideration of the treatment that has occurred and whether treatment is continuing or is planned for the next two years (s 6(5)).

10. Criteria for assessing a condition as fully stabilised are set out in s 6(6):

    For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (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 reasonable treatment.

    The reference to paragraph 6(4)(c) is to the requirement that the condition be fully stabilised; the reference to subsection 11(4) is to how episodic or fluctuating conditions are to be assessed, as set out below.

11. What constitutes ‘reasonable treatment’ for s 6(6) above is specified in s 6(7): reasonable treatment is treatment that is available at a reasonably accessible location, at reasonable cost, can reliably be expected to substantially improve functional capacity, is regularly performed, has a high success rate and carries a low risk.

12. Section 6(9) states that there is no table dealing specifically with pain; rather when assessing functional impairments connected with pain, consideration must be given to the loss of functional capacity because of the pain.

13. Section 7 sets out the information that must be taken into account in applying the tables, namely the information provided by the health professionals specified in the relevant table, additional medical or capacity information, and any information specified in the table including its introduction. Section 8 lists information that must not be taken into account: self-reported information must be corroborated, and non-medical factors must be disregarded unless they are required to be considered in the relevant table. Section 10 sets out how the relevant table is selected for rating an impairment. Section 11 sets out how the tables are used to assign impairment ratings: subsection 11(3) specifies that where a table tests a person’s ability to perform a function, the test is met if the person can do the activity normally, repetitively or habitually, and not only once or rarely; subsection 11(4) provides that episodic or fluctuating conditions must be assessed on the basis of the overall functional impact of the condition.

14. Turning then to the application of paragraph (c) of section 94(1), relating to a continuing inability to work, the relevant provisions for present purposes are subsections (2), (3), (3B), (3C), (4) and (5) of s 94 and the determination made under s 94(3C), the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Capacity Determination). For reasons which will become clear I do not need to apply these provisions to Mrs Taylor.

    The evidence

15. The background facts of the matter are that Mrs Taylor lodged a claim for DSP on 4 March 2013 (T8). In that claim she identified her disabilities, illness or injuries as ‘chronic lower back and leg pain, hyperthyroidism, depression, high blood pressure, high cholesterol’. Mrs Taylor identified the treatment she was receiving for these conditions as three drugs, one each for high blood pressure, cholesterol and pain. In answer to a question on the form relating to the impact of this treatment on her ability to study or work, Mrs Taylor said that she was ‘unable to carry out normal household duties due to chronic pain – must lay down [sic] frequently for relief’.

    Medical evidence

16. Mrs Taylor’s general practitioner, Dr Kim Peters, completed a DSP medical report on 4 March 2013 (T9). The report identified two conditions: that with the most impact was identified as ‘L5-S1 discectomy complications’ with a date of onset given as August 2011. Dr Peters recorded the current treatment as ‘Awaiting CT-guided periradicular injection’, Tramadol 200 mg, and ‘NSAIDS’ (which I assume refers to non-steroidal anti-inflammatory drugs). Past treatment was listed as analgesia (for 18 months from August 2011); NSAID (for 18 months from the same date) and surgery a year previously on 5 March 2012. Dr Peters described future/planned treatment as ‘CT-guided injection into L5-S1 peri-radicular space’. Current symptoms were ‘intractable pain, loss of function, weakness, absent reflex’. Dr Peters identified the history of the condition as a fall in August 2011 with resultant sciatica and stated ‘surgery was unsuccessful’. She described the impact on ability to function in the following terms: ‘constant pain, poor concentration, unable to bend, sit for periods, walking causes pain’. The impact was expected to continue for more than two years with an uncertain outlook for Mrs Taylor’s ability to function. Dr Peters mentioned two specialists to whom she had referred Mrs Taylor, namely Dr Saeed Kohan, an orthopaedic surgeon, and Professor Joe Ghabrial, a neurosurgeon.

17. The second condition identified by Dr Peters was depression with onset in 2000, for which the current treatment was ‘Pristiq tabs’, since 2011. Past treatment was ‘Efexor’, a treatment conducted for eight years from the year 2000. Dr Peters described future/planned treatment for depression as ‘continue anti-depressant’. Symptoms were ‘flat mood, anhedonia, poor motivation’. Dr Peters stated that the condition had a long history, stretching back 12 years, of chronic depressive disorder. The impact was expected to continue for more than two years with an uncertain outlook for Mrs Taykor’s ability to function.

18. Dr Peters stated that Mrs Taylor did not have other medical conditions which would impact on her ability to function.

19. Medical reports from specialists also cast light on Mrs Taylor’s conditions. Professor Ghabrial’s report after first seeing Mrs Taylor, on 26 November 2011, is dated 7 December 2011 (T4). Professor Ghabrial reported that computer tomography (CT) scans showed a synovial cyst at the right side of the L5/S1 site compressing the right S1 nerve. Magnetic resonance imaging (MRI) on 28 November 2011 showed a ‘right facet joint synovial cyst displacing the right S1 nerve root’ in the spinal canal. Professor Ghabrial scheduled Mrs Taylor for surgery, which is reported to have taken place in March 2012 (T5).

20. In November 2012 Mrs Taylor undertook a further MRI scan. Dr Amanda Woodward of Hunter Imaging Group reported that there was fibrosis at the site of surgery with right displacement of the thecal sac. There was ‘minor sac distortion and dilatation’ with the possibility of some arachnoiditis. Professor Ghabrial reviewed the scan and on 4 December 2012 suggested to Dr Peters that Mrs Taylor undergo CT-guided epidural injection for the pain in her leg (T6).

21. Dr Saeed Kohan reported to Dr Peters on 21 February 2013 (T7). He had seen Mrs Taylor because she had a ‘new onset of leg pain over the past six months or so’. Dr Kohan reported the history of Mrs Taylor’s pain problems, noting that removal of the synovial cyst had eased her right leg pain but that she now suffered other problems, including lower back pain with a sensation of heaviness and dragging, and pain in the left gluteal region radiating to the posterolateral calf with intermittent numbness. There was also a reported burning sensation in the posterolateral calf. Dr Kohan diagnosed left L5 radiculopathy secondary to mechanical compression of the L5 nerve root, with some instability at L5/S1. He considered arachnoiditis unlikely. The recommended treatment was L5 peri-radicular injection. If that failed, Mrs Taylor would require surgical intervention to decompress the nerve root and stabilise the L5S1 joint.

22. On 17 May 2013 Dr Peters wrote a note setting out Mrs Taylor’s medical history and her assessment of Mrs Taylor’s condition (T13). She wrote the note after Mrs Taylor had lodged her application for DSP, and apparently in support of that application. Dr Peters reported that Mrs Taylor’s pain returned after her laminectomy and that there was fibrosis and scarring at the site of surgical intervention. Dr Peters’ conclusion was that this condition was ‘not surgical resectable’ [sic] and ‘is a pain which she must learn to live with’. She reported on Mrs Taylor’s further consultation with Dr Kohan, suggesting that his advice was that surgical intervention was ‘a last resort’. She also reported that Mrs Taylor had undergone L5 peri-radicular injection, but that it had been unsuccessful. Dr Peters’ conclusion was that it was ‘very unlikely that Mrs Taylor will ever be free from this severe pain and as such is not able to work in gainful employment’.

23. Dr Peters also referred Mrs Taylor to a clinical psychologist, Mr Quentin Dignam, in respect of her depression. The note of referral (T14), dated 17 May 2013, stated that there was a history of depression in Mrs Taylor’s family, with two sisters and a niece suffering from the same condition. Dr Peters noted that Mrs Taylor had been prescribed three different antidepressants, at first Efexor, which lost its efficacy for her after some years, then Lexapro, which had been ineffective, and now Pristiq, which is more effective. Dr Peters noted that Mrs Taylor’s depression appeared not to be reactive to events but to be more deep-seated.

24. Mr Dignam saw Mrs Taylor on 8 June 2013. His report (T15) of 11 June 2013 described Mrs Taylor’s psychological state as ‘low mood, flat, lethargic and amotivated, intermittently tearful, with reportedly poor sleep and faltering appetite’. He noted that she said she had been unable to stop taking antidepressants without suffering ‘disabling teariness, irritability and low mood’. He reported that her pain and depression amplify one another. He diagnosed a major depressive disorder – chronic, of moderate severity, which he described as ‘an enduring and disabling condition’.

25. Dr Peters provided further reports in late 2013. A report dated 21 November 2013 (T19), apparently in support of Mrs Taylor’s review by the Social Security Appeals Tribunal,  describes Mrs Taylor’s conditions in similar terms to earlier reports, but notes that in respect of her spinal condition neither Professor Ghabrial nor Dr Kohan ‘feel  that further surgery at this time will relieve her pain or disability’. Dr Peters reported in respect of possible further treatment that ‘Dr Kohan has stated that possible surgical intervention may be necessary sooner rather than later if her pain worsens’. Dr Peters’ comments on Mrs Taylor’s depression were in similar terms to the other reports available.

26. Dr Peters also wrote a very brief note to Centrelink on 3 December 2013 (T21). This note stated that Mrs Taylor suffered from a ‘Lumbo Sacral Spine condition’; that it was fully diagnosed, had received all appropriate treatment ‘to the extent of medical possibility’, and was permanent.

27. Mr Dignam had a conversation with Dr Christopher Minogue, a Medical Advisor at Centrelink, recorded (T17) as part of the decision by the Authorised Review Officer. That discussion records Mr Dignam as saying that in his opinion psychological therapy for Mrs Taylor was indicated.

28. In the context of this review, the respondent wrote to Mr Dignam on 12 March 2014 and asked him some questions relating to Mrs Taylor’s qualification for DSP (Exhibit R5). The questions went especially to the diagnosis, the severity of the diagnosed condition, whether or not it was permanent, the treatment received and reasonably available, the rating under the relevant impairment table and whether or not the condition would prevent Mrs Taylor working or undertaking training or rehabilitation. Mr Dignam evidently had a telephone conversation with someone at Centrelink, and subsequently put down some comments in a letter to the respondent, dated 28 March 2014 (Exhibit R3). Mr Dignam did not try to answer all of the respondent’s questions. He noted that Mrs Taylor had not, to his knowledge, undertaken psychological treatment. He also stated that while psychological treatment is in general part of treatment for depression, he was unable to say whether in her case psychological treatment would be either indicated or, if undertaken, effective. He noted also that psychological treatment is also often used to help manage chronic pain, but that such treatment is rather specialised and done in conjunction with other forms of treatment. A service had recently opened in Tamworth, not too far from where Mrs Taylor lives, and he understood she had been referred to that service. Again, he was unable to say whether psychological treatment was either indicated or likely to be effective in Mrs Taylor’s specific case.

29. The respondent also wrote to Dr Peters on 12 March 2014, asking the same questions asked of Mr Dignam (Exhibit R5) and Dr Peters responded on 17 April 2014 (R4). The respondent’s letter asked for a response on all the disability-related conditions suffered by Mrs Taylor, but Dr Peters responded only briefly, and only on the subject of Mrs Taylor’s depressive disorder. Dr Peters noted Mrs Taylor’s long history of depression, the family susceptibility to the condition, the exacerbation of the depression by pain, and the current treatment with antidepressants. Dr Peters concluded that Mrs Taylor was ‘fully diagnosed’; that she had stabilised and was ‘unable to receive any further treatment’.

    Evidence on continuing inability to work

1. Centrelink undertook a Job Capacity Assessment in April 2013 (T10). The report of that assessment, dated 2 May 2013, found that Mrs Taylor had the capacity at the time to work 8-14 hours per week, and that with intervention she could work 15-22 hours per week. The report also made some comments on Mrs Taylor’s medical conditions and concluded that her conditions were not fully diagnosed, treated and stabilised.

   Mrs Taylor’s evidence

2. In oral evidence Mrs Taylor repeated much of what is included in the medical reports referred to above. She said that she lives with constant pain which is ‘there all the time’.  The peri-radicular injections suggested by Dr Kohan had done no good at all. She was aware that surgery was available as an option, but was wary of surgery after previous surgery produced fibrosis and scarring with resultant pain. Dr Kohan had said that surgery was a last resort, and only if the pain became completely intractable. She had not gone back to these or other specialists because of distance and expense. Dr Peters had not encouraged her to pursue these options, believing that she had done all that she could. When asked where the phrase ‘last resort’ had come from, Mrs Taylor said that Dr Kohan had told her that the outcome of further surgery was not guaranteed, and it was not something he would rush into. It was available if needed. When asked about the referral to the pain management services in the region, Mrs Taylor said that the Newcastle service was too far away but that she was on the waiting list for the Tamworth service.

3. Of her depression, Mrs Taylor reported that her medication is partially effective but that she still has bad days from time to time when depression ‘just comes over’ her. Her treatment is antidepressants. She has only had counselling some 25 years ago at the time of a marriage breakup. She had not found talking of any help in dealing with her problems. She had only been to see Mr Dignam on one occasion, and that only because she had been told by Centrelink that a report from a psychologist would be needed. She had found the experience of talking to a psychologist very distressing.

4. Mrs Taylor reported that in terms of her functional capacities during the relevant period, relating to the spinal condition, if she pushed herself and was willing to tolerate the pain, she could do some normal household duties, bend to table height, move her head to the side without turning her entire body, load the dishwasher with the aid of a stool, sit for longer than 10 minutes at a time, travel as a passenger in a car for 30 minutes, help her husband with the shopping and feed the hens. Sometimes she could not stand for 10 minutes and many of the listed tasks she has now surrendered to her husband as the pain has worsened. In the relevant period most of the tasks caused her pain, sometimes severe pain.

5. In relation to her depression, Mrs Taylor reported that she could undertake cooking tasks (although pain made it difficult, she could read, understand and follow a recipe), maintain personal hygiene, would not require a social worker for household duties, could supervise her own medication with the help of her husband, leave the house, maintain her existing social activities and plan and organise the normal activities of the household. Mrs Taylor said that her depressive episodes were occasional, with perhaps one to two days a week being worse than the others; and that the major impacts were difficulty getting up in the morning and episodes of tearfulness.

   The applicant’s argument

6. The applicant’s argument started from the severity of Mrs Taylor’s conditions. Mrs Taylor has a severe spinal condition, as attested by her doctors, and in particular by Dr Peters, who referred to her pain as ‘severe’ on more than one occasion. Mrs Taylor’s depression was described by Mr Dignam as ‘moderately severe’. Mrs Taylor has not previously sought support through Centrelink because she was being supported by her husband. Now that he has retired and his income has accordingly reduced, Mrs Taylor needs Centrelink support for her disabilities.

7. The applicant’s argument acknowledges that Mrs Taylor has not been accorded a score of 20 points on a single impairment table, suggesting this is because the tables do not recognise the way in which chronic pain impacts not only on physical functioning but also on cognitive functioning.

8. In respect of the requirement that Mrs Taylor have a continuing inability work, under s 94(1)(c), the applicant pointed out that Dr Peters has consistently stated that Mrs Taylor cannot work in the foreseeable future because of her impairments. It was also argued that Mrs Taylor attracted an exemption from the requirement to establish her continuing inability to work.

   The respondent’s argument

9. The respondent accepted that Mrs Taylor suffers from a spinal impairment and depression, and that both conditions have been fully diagnosed, but contested whether those conditions have been fully treated and stabilised.

10. At the time of the claim Dr Kohan had suggested that surgery for Mrs Taylor’s spinal condition was indicated. Any reference to such surgery as a ‘last resort’ comes from someone other than Dr Kohan. Therefore there was a course of treatment readily available. More weight should be put on Dr Kohan’s opinion, as he was a specialist and saw Mrs Taylor close to the time of the claim. If Dr Kohan’s views are accepted, Mrs Taylor’s condition was not fully diagnosed, treated and stabilised, and an impairment rating could not be given to it.

11. If the condition were accepted as fully diagnosed, treated and stabilised, the respondent submitted that it should be accorded a rating of 10 points under Table 4. There is no basis for a rating of 20 points under that table.

12. With regard to Mrs Taylor’s depression, she has not undertaken psychological treatment. Mr Dignam’s report of 28 March 2014 (R4) suggested that such treatment was in general used in treating depression. Mrs Taylor’s antidepressant regime would be usefully complemented by psychological treatment. Pain management or cognitive behaviour therapy seemed indicated in helping to manage her pain. To undertake such treatment would meet the requirement in s 7 of the Impairment Tables for reasonable treatment. If chronic pain is exacerbating Mrs Taylor’s depression, then a question arises whether the depression can be regarded as fully diagnosed, treated and stabilised if the underlying cause of the pain is not so regarded.

13. If Mrs Taylor’s depression were to be accepted as  fully diagnosed, treated and stabilised, the respondent submitted that it would be difficult on the limited evidence available to give her condition a rating under Table 5; if a rating were to be given it could not be greater than 10 points.

14. With regard to the requirement for a continuing inability to work in s 94(1)(c), the respondent pointed to the qualification requirements set out in s 94(2). Paragraph (aa) requires the completion of a program of support for all except those with a severe disability. The respondent contended that Mrs Taylor’s impairment rating, if she were able to be assigned one, could not be greater than 10 points on any table, and so she would not have a severe impairment. Therefore she would have to have begun a program of support before applying for DSP. As she had not done so, she would not qualify as having a continuing inability to work.

15. That conclusion is supported by the Job Capacity Assessment undertaken by Centrelink (T10). The opinions of trained and qualified work assessors should be accepted.

    CONSIDERATION

16. Mrs Taylor has medical opinion to the effect that she cannot work because of her disabilities. But those statements do not of themselves qualify her for DSP. The decision that a person qualifies rests on a series of judgments only some of which are medical in nature. The Act sets up a series of tests for an applicant and the applicant must pass each of those tests in order to qualify. The relevant tests here are those associated with the impairment rating and with continuing inability to work.

17. It is not at issue that Mrs Taylor has one or more impairments. She meets the test set by s 94(1)(a). Nor is it contested that she suffers from a spinal condition (L5 radiculopathy) and depression. The respondent has not contested, and I accept, that these conditions are fully diagnosed in the terms of the Act.

18. There remains the question whether Mrs Taylor’s conditions should be regarded as fully treated and fully stabilised. These judgments rest on the medical evidence, which is in many ways unsatisfactory. None of the treating doctors gave oral evidence, and so the critical issues have not been tested in cross-examination. Further, it is clear that some of the doctors have had only a minimum time in consultation with Mrs Taylor. Dr Kohan and Mr Dignam each saw Mrs Taylor on only one occasion. Dr Peters has had a longer association with Mrs Taylor, but many of her opinions and reports date from outside the relevant period and may be influenced by her continuing contact with and treatment of Mrs Taylor. That has an influence on the weight I can give her evidence.

    Was Mrs Taylor’s spinal condition fully treated and stabilised?

19. With regard to her spinal condition, the evidence from the reports of Dr Peters and the specialists, Professor Ghabrial and Dr Kohan, largely coincides. Mrs Taylor suffers from a spinal condition that occasions her severe pain: what is at issue is whether that condition has been yet fully treated and stabilised. The evidence of Dr Peters is generally in support of the condition being fully treated and stabilised: the pain ‘is not surgical resectable’ [sic]; peri-radicular injection ‘was unsuccessful’; and it is ‘very unlikely that Mrs Taylor will ever be free from this severe pain’ (all T13, dated May 2013); the surgeons (Professor Ghabrial and Dr Kohan) ‘do not feel that further surgery at this time will relieve her pain or disability’ (T19, dated November 2013). Professor Ghabrial’s evidence on this point is inconclusive: he recommended CT-guided epidural injections, but offered no opinion on Mrs Taylor’s prognosis over the longer term or the likelihood of any further treatment being indicated.

20. Dr Kohan’s evidence is the major source of the contention that the spinal condition was not fully treated and fully stabilised. In his report at T7 he recommends peri-radicular injections, but then suggests that if that were to fail, ‘in terms of surgical intervention she would require nerve root decompression and stabilisation at L5/S1’. This seems a straightforward if brief recommendation, with no qualifications as to how strongly it might be indicated, how normal the course of treatment, or what the prospects of success might be. Elsewhere this surgery as recommended by Dr Kohan is referred to as a ‘last resort’ – a phrase used by Dr Peters (T13) and by Mrs Taylor (T10 and in oral evidence). In completing her medical report for Centrelink (T9), Dr Peters included L5-periradicular injection under the heading ‘details of any further scheduled or proposed treatment’, and in the Job Capacity Assessment report (T10) Centrelink assessors reported that Mrs Taylor had told them that the injections had given her ‘morning relief’, although in oral evidence she denied any relief from the injections (and that is supported by Dr Peters).

21. If I am to regard Mrs Taylor’s spinal condition as fully treated, I must take into account what treatment or rehabilitation has occurred and whether treatment is continuing or planned in the next two years (Impairment Tables s 6(5)(b) and (c)). Clearly Mrs Taylor has undergone treatment (surgery and peri-radicular injections) but no other treatment seems to have been planned or projected by those who were providing medical services to her during the relevant period, apart from Dr Kohan, whose brief reference to surgery leaves open the question of how definite he might have been about the suitability of surgery and the prospects of its success. In this context I discount the comments made in the Job Capacity Assessment report, as those undertaking the assessments were not themselves medically qualified. On the basis of the rather incomplete and not entirely consistent evidence available to me, I conclude that Mrs Taylor’s spinal condition was fully treated.

22. There are two pathways to a conclusion that a condition is fully stabilised. On the one hand a person may have undertaken all reasonable treatment, to the point where further reasonable treatment will not enable them to work (s 6(a)); or else they have not undertaken such treatment and either treatment would not enable them to work or they have a compelling medical or other reason for not being treated (s 6(b)). In this instance a conclusion is difficult to draw with any finality because of the sketchiness of the medical evidence: it is not clear to me whether the further surgery described by Dr Kohan should be regarded as reasonable treatment which Mrs Taylor is yet to undertake, or in her words and those of Dr Peters, a last resort only to be undertaken if her pain becomes totally intractable. I note that Dr Peters repeatedly expressed the view that Mrs Taylor can expect no improvement in her current level of pain (both during the relevant period and afterwards), and that Mrs Taylor is herself strongly opposed to further surgery because her last surgery produced no improvement in her condition, and may indeed have worsened her pain.

23. My conclusion, on the basis of medical evidence which is incomplete and unable to be properly tested, is that Mrs Taylor has been fully treated and her spinal condition is fully stabilised. Dr Kohan’s report is insufficiently clear about how strongly further surgery is indicated in the face of Dr Peters’ evident conviction that it is not, despite the additional weight to be given to a specialist’s opinion.

24. If I am wrong, and it would be reasonable for Mrs Taylor to undertake further surgery before her condition could be regarded as fully treated, s 6(b) may have application, in that either Mrs Taylor’s condition would not improve with surgery, or she may be regarded as having a ‘medical or other compelling reason’ for not undertaking surgery. In the first place, Dr Peters’ belief seemed to be that Mrs Taylor’s condition would not improve with surgery - a basis for a decision under s 6(b)(i) and also a medical reason under s 6(b)(ii)). More persuasive is that Mrs Taylor’s aversion to surgery may meet the requirements of an ‘other compelling reason’ under s 6(b)(ii). In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 the Full Court of the Federal Court considered how ‘compelling reason’ in s 6(b)(ii) should be construed. Their Honours concluded that the reason for not undertaking treatment is held by the person claiming the DSP benefit, but that it is for the decision-maker (usually the medical officer assigning the rating under the tables, here the Tribunal) to decide whether the reason is ‘compelling’. Asking the question the Full Court held ought to be asked: ‘Am I satisfied that there is a reason that compels Mrs Taylor to refrain from further surgery’ (at [39]), I find that Mrs Taylor indeed has a compelling reason, namely that her previous surgery was unsuccessful and has given her no confidence that further surgery will lessen rather than worsen her pain.

25. In any case, I have no evidence that the proposed surgery would meet the test set by s 7 for what constitutes ‘reasonable treatment’. In particular, the evidence before me, and Dr Peters’ scepticism in particular, gives me little confidence that on the balance of probability the surgery meets the tests in s 6(7)(c) and (e), namely that it can reliably be expected to substantially improve functional capacity and that it has a high success rate.

26. Mrs Taylor’s spinal condition is therefore permanent according to the criteria in the Impairment Tables. The appropriate table for assigning a rating is Table 4, Spinal Function. Applying that table, Mrs Taylor attracts a rating of 10 points. She can sit in a car for 30 minutes (and does so when her husband drives her into town); but she cannot do work above her head, and while she can bend forward to pick up a light object at knee height, can only do so with pain and difficulty and not normally or on a repetitive basis, as required by s 11(3).

    Was Mrs Taylor’s depression fully treated and stabilised?

27. The Impairment Tables lay emphasis on professional medical opinion in arriving at a rating for a claimant. The appropriate table for assessing the functional impact of depression is Table 5 on Mental Health Function. That table requires that the diagnosis be made by a medical practitioner, who may be a psychiatrist, with evidence from a clinical psychologist if the diagnosing doctor is not a psychiatrist. That requirement was satisfied by the reports of Dr Peters and Mr Dignam (Mr Dignam saw Mrs Taylor a few days outside the relevant period, but the respondent accepts, as do I, that the diagnosis may be applied to the relevant period).

28. The only treatment Mrs Taylor has received for depression is antidepressant medication. When Mr Dignam was asked about this in the exchange with Centrelink that took place in March 2014 he noted that psychological treatment is generally applicable in depression, but that he could not comment on whether it was indicated in Mrs Taylor’s case, nor on whether it would be effective (Mr Dignam’s comments were made well outside the relevant period, but clearly refer to the time when he saw Mrs Taylor in June 2013). In July 2013 Mr Dignam is reported as saying that psychological treatment was indicated for Mrs Taylor, but I prefer his own words (R3) to those reported on his behalf by Centrelink (T17). Mrs Taylor does not want to undergo psychological treatment, having found it unhelpful (about 25 years ago) in the context of a marriage breakdown, and having found the session with Mr Dignam upsetting and painful.

29. I cannot regard Mrs Taylor’s depression as fully treated when a major avenue of treatment has not been even explored. Mr Dignam’s comments of March 2014 make it clear that his session with Mrs Taylor was purely diagnostic. Dr Peters appears not to view psychological treatment as appropriate, but she is not a clinical psychologist, and her views must be discounted to some degree in the face of Mr Dignam’s comments. If Mrs Taylor has not been even examined in a therapeutic context to determine whether psychological treatment is indicated, I cannot see that she has been fully treated, in the normal understanding of those words, and taking into account the requirements of the Impairment Tables. Her aversion to psychological treatment logically comes to be considered after there is informed medical or psychological opinion on whether such treatment is indicated in her particular case. Further, the reason for her not wishing to undergo psychological treatment is not compelling in the sense that her wish not to undergo further back surgery is compelling. Mrs Taylor has a strong aversion to psychological treatment, but has not experienced it in a therapeutic (as opposed to diagnostic) context for 25 years. There is a strong contrast between the possible adverse consequences of her undertaking a course of psychological treatment and the prospect  of continuing or worsening pain from further back surgery.

30. If Mrs Taylor’s depression is not fully treated and stabilised, I cannot assign an impairment rating. Mrs Taylor’s application therefore does not meet s 94(1)(b) of the Act, and I do not need to consider the application of s 94(1)(c).

    Conclusion

31. Mrs Taylor suffers from two significant conditions which make her life difficult and which she and her doctor believed at the relevant time made it impossible for her to work. They both believed that she should therefore be able to receive the DSP. The law as set out in the Social Security Act 1991, however, does not rely entirely on medical judgments. Tests of severity and permanence must be met, and it must also be established that a person is unable to work, on a continuing basis. Despite Mrs Taylor’s conditions, and the clear difficulties that the prospect of working held for her, she has not met the tests for permanence provided for in the Act.

    DECISION

1. The decision under review is affirmed.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member

................................[sgd]........................................

Associate

Dated 26 September 2014

Date of hearing	11 August 2014
Advocate for the Applicant	Shaun Peters, Disability Advocacy NSW Inc.
Advocate for the Respondent	Charlene Gerrard
Solicitors for the Respondent	Programme Litigation and Review Branch, Department of Human Services