Henderson and Secretary, Department of Family and Community Services
[2004] AATA 1074
•14 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1074
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/311
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY Henderson
Applicant
And Secretary Department of Family and Community Services
Respondent
DECISION
Tribunal Dr D Weerasooriya, Member Date 14 October 2004
Place Perth
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal, and, in substitution therefor, decides that the applicant is eligible for disability support pension on the basis that he satisfies the requirements of s 94(1) of the Social Security Act 1991 (Cth) from 10 May 2002.
.............(sgd D Weerasooriya)............
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification for disability support pension - pathological lack of motivation in regard to ability to work or be retrained – use of new evidence on matters already flagged before previous decision makers – use of guidelines attached to impairment tables in difficult or complex cases
REASONS FOR DECISION
14 October 2004 Dr D Weerasooriya, Member
INTRODUCTION
1. Mr Henderson, the applicant, claimed a Disability Support Pension (“DSP”) on 10 May 2002. A Centrelink Officer made a decision to reject his application on 21st June 2002. On 20 September 2002 the Applicant sought a review of that decision by lodging additional information. On 11 July 2003 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the Centrelink Officer made on 21 June 2002 to reject the applicant's application for DSP.
2. On 18 August 2003 the applicant applied to this Tribunal for a review of the reviewable decision made by the SSAT, and gave his reasons for doing so, in the following terms: "The aspect of my condition of acute reactive irritant tracheobronchitis has not been clearly understood! That it is a permanent condition that causes great discomfort! And at times respiratory infection which is a disability. I am 56yrs old -10.9.2003 - what are my prospects?".
3. At the hearing before the Tribunal the applicant was unrepresented and the respondent was represented by Mr A Holt, a Centrelink advocate. The Tribunal had before it the documents (T documents comprising T1 to T27, pages I-144) lodged by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”).
4. A few days before the hearing the Tribunal noted that the SSAT decision referred to documents that included letters from Dr Harper an Occupational Physician and Dr Anderson an Orthopaedic Surgeon. However, copies of these letters were not included in the T Documents. Inquiries were made with the AAT Registry (“Registry”), and though a letter from Dr Anderson, filed by the applicant at the Registry on 7 January 2004, was found, no report from Dr Harper was available. The Applicant had been requested to bring a copy of Dr Harper's report and at the hearing he handed up a bundle of reports to the Tribunal which included the report from Dr Harper and two further reports from Dr Anderson, one of which was the original of that which he sent to the Registry on 7 January 2004, the other a copy of the 1999 report that should have been in the T documents, a report from Dr Proud – a Psychiatrist mentioned in one of Dr Anderson's reports, and a report with an attachment from Dr Musk. These reports were taken into evidence and given Exhibit numbers as follows:
Exhibit Al - Letter dated 23 December 2003 from Dr Anderson, Orthopaedic Surgeon;
Exhibit A2 - Letter dated 6 June 2000 from Dr Andrew Harper, Occupational Physician;
Exhibit A3 - Letter dated 21 May 2000 from Dr Steven Proud, Psychiatrist;
Exhibit A4 - Letter dated 11 December 1999 from Dr Anderson, Orthopaedic Surgeon; and
Exhibit A5 - Letter with attachment dated (4 December 1998 and 14 December 1998) from Dr Musk, Respiratory Physician.
5. Towards the end of the first hearing day the Tribunal read the reports that the applicant handed up (i.e. Exhibits A1-A5). As an ailment of emotional disability had been flagged before the SSAT in Dr Anderson's report of 11 December 1999 (Exhibit A4), the Tribunal arranged for a Directions Hearing and with the agreement of the parties the applicant agreed to see Dr Proud and supply the Tribunal with a current psychiatric report from Dr Proud.
6. The applicant submitted a psychiatric report from Dr Proud giving his more current psychiatric status at the resumed hearing on 26 July 2004. This report, dated 24 March 2004, was taken into evidence as Exhibit A6.
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The Applicant’s Evidence
7. At the first hearing on 16 January 2004, the applicant presented his case to the Tribunal. His evidence was wide ranging and the Tribunal summarises it as follows:
1. The applicant was born in New Zealand in 1947 and is 56yrs old. He said he came to Australia when he was 35yrs old. His father was a heavy smoker who developed lung cancer and died when he was 53. He denied any history of asthma, allergies or depression in the family.
2. He had passed up to matriculation level and excelled in the practical technical subjects, like technical drawing, and stated "I excelled in these areas and I guess that gave direction as to what I was going to do with my life." He described himself as an avid reader. He said "I was involved in a lot of sport when I was a young guy. Up to about the age of 30 I was involved in amateur wrestling. Became part of a preliminary selected team for the Commonwealth games in 1982. I didn't get to the team. But under the age that I was then; - ‘78 - and going back I had won the New Zealand title - the welter weight title for amateur wrestling". He had also played rugby and had been a sprinter.
3. He was trained as a fitter welder and served his apprenticeship in New Zealand and went on to advanced training in his discipline. He came to Australia in 1982 at the age of 35yrs "for better employment opportunities" (Trans. p 3). He started working at Whyalla for a company called World Services Construction and said he “embarked on a journey of improvement in my disciplines over the number of years until I arrived in 1998 at Western Mining Corporation’s (“WMC”) Nickel Smelter in Kwinana" (Trans. p 3).
4. He said that in 1998 he was asked to "go inside an autoclave and do some weld repairs on a preheat coil, a stainless steel coil. And my discipline had through my training had elevated me to a fairly high level of competency, so I embarked on this three day exercise and whilst I was inside the vessel, there had been a couple of things occur that had been overlooked. In confined space there is always a sentry on duty at the entrance to the vessel which is part of Work Safe requirement of safety. Also, an atmosphere analyser has got to be in situ with a snorkel or a hose that goes to the bottom of the vessel. Unfortunately for me, the alarm had been sounding off, but being inside the vessel I hadn't heard the alarm, and the Sentry for whatever reason, decided to cut the snorkel and reduce the length of the snorkel to about 300 millimetres, so it was only just inside the manhole. So that was one part of the scenario. The other part of the scenario was that the air supply line had a hole in it, which wasn't seen or discovered and Western Mining had discharged a lot of liquor, in other words, chemical in liquid form was a leaching solution, onto the ground inside the one wall underneath the autoclave. This liquor gave off vapours and fumes and it was being injected for a start on day one into the vessel. And I kept complaining that there was a smell in the vessel, I reckoned it smelt like ammonia. The leaching solution has 26 constituents in it, chemicals of which about 18 can cause problems with respiratory symptoms of damage. I've since discovered this information through Paul O’Halloran's office, my barrister that was handling or is handling my Worker's Compensation claim which has been going on for six years, which is not an unheard of situation in Western Australia. On the third day, I was very ill and each morning on that site at the nickel refinery, they have what they call a safety meeting or a “Tool Box” meeting. And I had reported the smell the atmosphere contaminants which I was - duty of care bound me to do so. Nothing was done for day one and day two.”
5. The Tribunal asked the applicant whether the report was in writing or verbal:
“Yes there was minutes taken of the safety meetings. Nothing was done on the first two days simply because when the smell occurred they just told us to exit the vessel. I wasn't satisfied with that, I kept pushing them to do more than that, to create an investigation of discovery to find out why this was happening. These autoclaves have a lot of pipe work attached to them and valves. The valves are all isolated, the impellers are chained where they are connected to electric motors, the big impellers are inside the autoclaves to stir the molten metal, ie Nickel. So on the third day I felt extremely ill, this was a Friday morning. And I said to my foreman or leading hand, I was leaving the site, I was going home, I was just unwell and felt quite sick and nauseated and my eyes were streaming, my nose was not the best, it was running, I went home, went to bed and on the Monday I was not a well man, and I went to Dr Gallagher at Belridge Medical Centre and he put me on a humidifier". He then said that he had subsequently somewhere in the order of 30 or 40 different consultations which included seeing specialists such as Dr Anderson, Prof Harper and Prof Musk, and he was told that he had acute tracheobronchitis -"which is the bane of my life, I can assure you". (Trans. p 6.)
6. He went onto describe how the condition affected him. "It's very uncomfortable at times, in particular when I sleep I take Serepax so that I can relax and sleep. But when I wake of course, there is accumulation in my chest through being horizontal. When I stand vertical in the morning then it starts and I probably have a 15 mins coughing problem and bringing up just a clear mucus. But its everyday, it's a nuisance".(Trans.p 6.)
7. He went onto describe the motor vehicle accident of 2000 that occurred in Queensland in the time he was trying to save his marriage and was trying to reconcile his situation with his wife.
8. He described how he received the injuries which are documented in the medical reports. These injuries were as follows and have been documented, diagnosed, treated and stabilised and likely to be permanent:
1. Acute irritant tracheo bronchitis -industrial accident 1998;
2. Right shoulder rotator cuff injury -Motor Vehicle Accident Oct 2000;
3. Right wrist carpel tunnel syndrome; and
4. Partially severed right ulna nerve MVA Oct 2000.
He told the Tribunal he takes Temazepam for sleep and Moxacillin duo (an antibiotic) for control of any infections in the respiratory tract. The antibiotic is taken mostly as a prophylactic.
He explained that while in Toowoomba "I wasn't attentive because of these other injuries as I should have been and I succumbed to a really bad infection which almost became pneumonia" (Trans. p 7). He told the Tribunal that he had not had any further similar bouts because he looked after himself.
He returned to Perth and had to visit various specialists regarding his skeletal and nerve injuries.
He described the difficulty he had with having to put in a form to the Department of Family and Community Services every two weeks for the Newstart Allowance, having to travel from Ellenbrook where he lived to Midland and having to visit his general practitioner every 13 weeks to get his medical certificate for which he was charged AUD$38.
He told the Tribunal that he had tried to rehabilitate himself and applied for 32 positions in Sales and Administration before he finally landed a job with Darco Engineering ; a job which he held for nine weeks. He put down the lack of response to the 32 applications to his age and his having to mention his injuries.
9. The Tribunal sought clarification from him about matters regarding some of the other injuries mentioned in the reports, particularly how they affected writing, grasping, and lifting. He told the Tribunal that the job with Darco Engineering lasted only ten weeks.
10. The Applicant noted that one of the problems he had with Darco Engineering was related to a carpel tunnel injury at the wrist because "there was a lot of writing and documentation and it became a problem" (transcript p. 17).
Cross-Examination
1. Mr Holt asked the applicant about Exhibit R1 - The separation certificate (Relating to his employment with Darco Engineering) - "Now, how did you go with your training? Did you have any problems?"
The applicant responded that "It was really just the office lady showing me their systems and just becoming familiar with what they operated with. Not so much the computer it was really just the filing and, you know, I mean a bit of intelligence common sense would tell you where to put a particular document in the archives files in the store room or where to find things. Just that sort of training…" (Trans p. 29)
2. Mr Holt: "But you had no problems or issues of training at all? How long was the training for? The whole nine weeks?"
"Oh its - oh no. It was spread over a few hours along the way over that time…. When I say they, it was two office ladies; one was the manageress of the office - management. The other lady was - she did all the pays and all the accounts and that type of admin. See my real function was to write reports on results of welding or whatever was taking place and my knowledge of that field is quite good and - and communicate with clients to try and stimulate deliveries of documentation that they need for a job or drawings or if it was a tender document or something of that nature. And that you know I could handle that part of it. What they couldn't handle was me going home when I was - when I was uncomfortable yeah. That’s when you are paying people money, you want a hundred percent, not part of it”.
3. Mr Holt pointed to Dr Harper's report - Exhibit A2. "He refers to that you are capable of clerical and administrative work".
The applicant said "Yeah that was probably around the same time that I was applying to Darco. I think, I am not really sure, what year, what was the date of that report?"
"The date of this was I believe, I think it was 6 June 2000".
"Yeah that's the – he encouraged me to try and do something with myself and I was sort of contacting various companies to try to get employment and eventually I arrived here with Darco. And he did motivate me, he is a nice man and he - he talked to me about perhaps trying to get out there and do something. But unfortunately, that didn't work out."
4. Mr Holt: “So it was basically the environment of Darco that was a problem more so than the work itself?”
“---Yeah, -- I say that would be right --- I I mean - I've been in the industrial world for a long time and you can't remove knowledge or experience, so that's not going to go away" that's latent, but the environment was the biggest enemy.”
5. Mr Holt: “Okay I also noticed that one of your earlier reports you were interested in doing project management and it was a report from Dr Harper as well?”
“Yeah he was motivating me. Yes? But then I discovered to go through a management training its very expensive and I just don't have that sort of money. I think from memory it was thousands of dollars somewhere around $30,000 to go through the whole thing and arrive with a diploma in management. I mean I've had experience in - in administration in industrial environments, you know, as a foreman, as a supervisor and as a project manager in my younger years. But in those days, they didn't (sic) you to hang shingle on the wall. They asked to hang your experience up - up in front of them and say; I can do it. Now, of course, they look for the qualification, they want you to have records, quality assurance, quality control, you have to produce the appropriate qualification. And to get that qualification, there's - there's training. But its expensive, you know its not cheap. Mr Holt asked, - now part of the criteria for New Start is to actually speak to a Job Network member? Right. have you spoken to a Job network member about further training...Not that I recall. No.”
6. Mr Holt: "Was Darco aware of basically your age and incapacity at the time as well?"
"Age of course, I didn't go to extreme description about my medical problem, but I did say to them that I had an arm problem and a chest problem and it became apparent after a while that there were some days there I was coughing that bad in the toilet you know Terry used to slide his head in the door and say, are you alright. And I'd say -Oh I I am going to go home, and it just got obvious. I had become obvious. I wasn't trying to be collusive or hide things from him, I was trying to function for myself because, I needed the money. I have a mortgage, I have a house to protect and - but it didn't pan out. So that's what happened there"
7. Mr Holt: "I noticed also that you used to be a metal work tutor?"
"Years gone by I studied under Dr Michael Cash with Monash University back then and he had an adult tutor course taking place, back in the late seventies through to the early eighties, and I did the tutorial that was required and I was teaching welding skills too, of all people, prisoners, in - in a high school environment in the metal work class room. And he offered me the opportunity just quantifying my - my knowledge and skill and if I did this adult course, he would provide me with a qualification.
But when I came to Australia, I produced that and my trade certificate here and it wasn't recognised. So that what I had to do in 1990 -1990, was to in - in particular in Western Australia, I had to go through a trade's test at the Midland TAFE, and requalify myself for a tradesman rights certificate and - because I discovered although I'd survived reasonable weld (sic) for eight years I've been in Australia, in Western Australia the requirement for documentation is a lot more stringent, because the oil and gas and in particular, mining. So I went and did my trade certificate in 1990 at Midland TAFE…" (Transcript, p 31)
8. Mr Holt: “I note a letter from Dr Henderson (sic), which is also provided today on ---?--- Its a later report from Dr Henderson (sic) from last month.”
“Yes he provided two reports? ---Yes.”
“One is an exhibit I believe. I must apologise it is the actual one that you provided today? --- Oh, yeah, for Dec 23rd?”
“Yes? --- Yeah, 2003.”
“He actually points out that, and I quote, that you:
‘cannot sell your labour in the market place because you cannot fill the occupation you were trained to do. Knowing the circumstances of the family as I do, this man is not in a fit state to undertake a management role as a junior executive in a organisation because of his emotional strain under which he has been placed’.”
“---Yeah.”
9. Mr Holt then referred to an earlier letter that Dr Anderson had written in
December 1999 and said "And he states:Re: reading this man's file and this report which is considered in the summary to be the man's status at that time, seems to be compatible with his current situation.
“--- I didn't say that, “with his current status?"”
“Yes? --- Yeah.”
“--- Yeah, he was referring to my- my overall health.”
“Okay? ...condition.”
Mr Holt: “Right but - sorry, I must have read it ...because it appears that when he refers to your health it is in relation to - he brings into the fact of your mental stability, or emotional strain that you were at the time. That is still not the case now though is it?
“--- Well I wouldn't say it as is - it’s always stressful in an emotional manner when you are dealing with what I am dealing with and try to manage. I mean I don't particularly like taking drugs or chemicals or prescription things like toey say, take the tablet for this or that. I mean, I have a resistance to that. But I know I need to do it because of my overall aspect. My.....my stress level is not as pronounced but its latent and that concerns me, because I am still trying to to pull my marriage back in line, and reconcile with my wife. We don't' have nasty arguments over the phone and things like that. We just write to each other, and - and I am trying to encourage her. The biggest problem I have in my marriage is a financial one. I can't support my wife on the money that I receive and that's why, I guess the aspect of law change in the High Court before Christmas in November, has opened the door of opportunity for me in reference to getting a settlement out of Western Mining Corporation. How long it will take, I have no idea. But I know that if I am financially based and I can get that settlement and free hold my home of $125,000 or whatever that's left owing on it, I got a chance to bring my life back together in part to what it was previously. So it - it's a sensitive area for me because at times I get a bit emotional, you know, because I miss my wife and she is a Dutch girl and she’s very capable in our marital situation she is a very capable lady. I miss her. I miss her a lot, but I am working on it, yeah. So that - yeah that at times make me feel quite sad. You know, its just sort of something I want to achieve. Its amazing how money has such a shocking influence on people's lives" (Transcript, p. 33)
10. Mr Holt - “Now, I just want to basically ask you two more quick questions - One is, you said earlier that you had no objection to training or doing any…”
“No I don't have - no, I don't - I don't mind, I enjoy learning. But it's a matter of aspect of cost and if I was a man of 35yrs of age I would be pushing all the buttons to get myself to a much higher level of qualification because I have a lifetime, If I was 35. At age 56 the lifetime is diminishing for me. And even if I spend time being trained, I am 57 this year, to do a project manager's course, I'd arrive at say 60, its getting harder all the time.
Not that my attitude is that I don't want to do it. I do want to do it. But what I do with
it when I finally arrive at that point and help me to get to a point where I’ve got gainful
employment, considering all these things that I had to deal with, its, yeah, that in itself
is quite a question in that I ponder it a lot just trying to seek some - I mean if I can get
this settlement from Western Mining that would probably pay off my home and allow
me to do a project managers course…”
11. Mr Holt – “Would it be fair for me to say that given the right environment that you would have, and the right training, you wouldn't have any problems doing administrative type of work?..”
“It's a possibility and I have no argument against that. My only suggestion would be
age.”
“I've experienced this objection. Its - and its really demeaning. Because you ring up
and you say, well, I've sent my documentation in - and this is going back those few
years ago - can I - what time do you want to see me for an interview? Oh, well, I am
sorry, but we've already selected a candidate. And I know, - It's the age."
12. The Tribunal asked about the letter from Dr Proud (Exhibit 3) - “You saw Dr Proud on 21st May 2000 and that was a referral from your own GP or who sent you to Dr Proud?”
“I - I think it was Dr Laney and Paul O'Halloran the Barrister.”
“Oh, right yes, so the Barrister said that he needs a certificate? --- They were looking for the report, yeah.”
“Okay, so in other words, the referral was from your doctor, but it was a legal request? --- It was requested by the Barrister.”
“By your Barrister? --- But I had to get the referral from Dr Laney if I remember rightly.”
13. The Tribunal then asked him about the question of alcohol abuse.
“Yeah I was - I was drinking a couple of glasses of whisky a day, and ---”
“At home or in the pub or what? --- No, no, no. Just at home.”
“At home? --- But he told me that if I continued with that, it would not be a wise thing to do. I was getting into a bit of an escapism thing with the stress I was under with my wife, at the time.”
“So it seems --- ? --- It didn't go on for a long time, it only went on for if I recollect it – it was only probably a few weeks that I was doing that, but then he made me realise, and other people around me, made me realise that was a bit of a fools errand. So I had the mental strength to correct myself if I know I am doing something that's not right." (Transcript p 36)
He then described the problem with his wife in some detail (Trans pp. 37 & 38).
14. The Tribunal noted that HSA doctor, Dr Street, had suggested regarding his work ability that a suggested suitable work was console operator. This was obviously not suitable for Mr Henderson. Mr Holt was asked to suggest a few other possible jobs that he might be able to do.
Mr Henderson replied to these suggestions generally as (Trans p. 42) “…well again
my answer to all of this proposed occupations - and there is one other point that I will
labour here with you - is environment.
I have to be very careful about my environment. And that is because of my respiratory problem. I mean, if I knock on the door and somebody opens a door smoking a cigarette, I am not going to stay there. and I consider that my personel health management is foremost in my life, rather than considering in this instance financial aspect. My health is where my standpoint is. So, environment will probably be the laboured point in any of these suggested occupations.” There is one other aspect we need to address. The affidavit was filed in the District Court yesterday for my claim against Western Mining Corporation. It is based on my medical condition of acute irritant trachobronchitis. And my Barrister has asked me directly yesterday; are you working? And I said; "No, I am not." He said; "Are you still in the same position are (sic) you were after the accident in 1998 healthwise." I said: yes I am. Fine. He said; "In that case I can file the affidavit. You see, if I take any gainful employment, it will have a direct effect on the legal position of my claim. And I can't afford to have that claim negated by an incident because I need to get a settlement eventually to payoff my home and to bring my wife back into my life. So, although it is well directed and well intended in you suggestion, Mr Holt, I have to be very very careful in the aspect of my management of my future financial security. And part of that future financial security is the contribution that the Department of Social Welfare (sic), Centrelink and possible conversion from the incapacitation new start to a disability pension.
That is acceptable to the law of this state under workers compensation Act or legal liability or common law liability. So I am in a very precarious position as to what I do. To have somebody gainfully employed is the sole purpose of this meeting today in part. The other part is to qualify whether I have sufficient points under the Act to justify a disability pension. And I believe I do. But also I would have to find the desire to motivate myself to go into an environment of employment and yet knowingly (sic) that this could endanger my position with my overall action in the
District Court which was completed in its filing form yesterday. Much as I want to cooperate with the Department and Mr Holt and its representatives, I still have to be advised by a barrister as to the best path for me to travel.” (Transcript, p 42)
16. Mr Holt asked: "You stated before that you received a claim for, I believe, in the effect of $25,000? --- That is correct".
"When did that occur? --- That was in late 2000 and that was declared to the department." (Transcript pp 43-44)
17. After some further discussion Mr Holt asked, "Let me rephrase the question, When did you become aware regarding the inability to work would affect your compensation claim? Was it recently or was it during - - -?”
As the Applicant was not coming to the point, Mr Holt asked, "I guess my question was pure and simple. When did you actually become aware that to gain employment would affect your compensation claim? --- Very early in the piece. It was fairly obvious from the barrister's advice” (Transcript p 45).
11. The Tribunal inquired further about his respiratory condition on the second day of hearing, and asked about any further severe infections since he worked after the alleged exposure to fumes at his workplace. He had not had any further exacerbations due to infection up to date, and he felt it was because he was managing it well – taking the antibiotic prophylactically.
He was not having a flu needle every year, having discussed it with his doctor who had not felt he needed it.
After he had presented his case he was asked by the Tribunal if he had anything more to add. He answered in the following terms:
"No, just in reference to my - the composition of my injuries, it has its effects on my energy levels. I get quite tired at times, whether its mental or physical, I am just weary. I just get weary at times, because the…. Like a fatigue -Yes a bit of fatigue involved I get, and that's just a composition of age, injuries and the - you know the general stress of just trying to manage my situation as I am okay..,.. and if the respiratory thing acts upon me, then I just have to sit quiet and be patient and that's pretty hard to do when you have been an industrial man up to the age of 50 you know and never had illness or any car accident. That's just you know, I find that, that's quite mentally stressful, frustrating. At times I feel quite angry because inside my mind I know I want to do more, but these things just won't let me do more.” (Transcript p. 12)
12. At the resumed hearing on 26 July 2004, the applicant was questioned further by Mr Holt.
1. Mr Holt asked him about Dr Proud’s report (Exhibit A6). "Okay. On page 2 in that the doctor reports to your current symptoms. He is saying your energy, sex drive, motivation, concentration and short term memory and enjoyment of life are low, Would that be a fair assessment?"
"--- I agree with most of what he says there, although there's an odd item that's not quite accurate relating to the date and so on. But he's got 90% of it fairly right".
"Now he also refers to your motivating (sic) relating to employment? --- Where is that?”
"Page 3? --- "Yes on the last paragraph, right? --- Yes.”
’As a result of being unemployed, having financial problems, separation from his wife and also his illness, has developed (sic) severe depressive illness…resulting in impairments of energy, motivation, and mental sharpness’.
The applicant: "I might explain a little bit about my life. My father was diagnosed with cancer when he was 42 yrs of age. He was put in a mental institution... .and he died at 53. He was there for eleven years. Unfortunately I was a witness to what they did to him once they started with their so called treatments and reference to his psychiatric conditions. I think I still have enough awareness and intelligence to realise the only person that's going to get this situation resolved is me…I've been through a lot of frustration and its going to take me sometime. But I am not really happy about approaching anti depressants because of my serious experience with my father." (Transcript, p 63)
13. In reply to the question from the Tribunal he said that his father was also given electro-convulsive therapy (ECT) or shock treatment. The Applicant indicated some areas of Dr Proud's report which he said was inaccurate and gave his reasons.
14. In particular, he did not agree with Dr Proud that he could handle 12 hours a week because of his situation. When asked about 8hours he disagreed with that too. He did not agree that referral to a Rehabilitation Psychologist would help either.
15. Mr Holt asked him about medication from Dr Laney. The Applicant explained that when he was at Darco Engineering he was on Temazepam - a sleeping tablet which has been changed later to Serapax which the Tribunal understands to be anxiolitic – i.e. helps relieve anxiety.
Mr Holt: "Well that brings into the issue. The issue before us actually, were you qualified for the disability support pension when you applied – sorry. A decision made by a Centrelink office on 25 June 2002 to reject an application for disability support pension. What I am trying to establish is that even though this report refers to your current situation it may not be an accurate reflection on the position when you actually applied for disability support pension in 2002”.
The applicant: "I think I've only applied once, I think for disability support. "
Mr Holt, "Yes and that is what the issue is that we are addressing at the moment? --- Yes.” (Transcript p. 77)
16. The Tribunal then considered Dr Proud's reports (Exhibit A3 and A6) dated 21 May 2000 & 24 March 2004, with a view to assessing Mr Henderson's psychiatric state at the time he applied for DSP on 10 May 2002.
Dr Proud’s report of 21 May 2000 (Exhibit A3)
17. Under the heading “Background” in his report, Dr Proud notes "Mr Henderson informs me that he has never been on worker's compensation as a result of this alleged injury".
The Tribunal noted that he was referring to the respiratory injury:
"But that he left work at Western Mining Corporation. Since then ..he has either not been accepted for these jobs (because of his age but also because he fails the welding competency test, with his cough he is unable to produce a fine homogeneous weld, and this causes him to fail the welding competency test), or because his work is found to be unsatisfactory, secondary to the heterogeneity in the weld produced from the cough induced vibration when he is doing the weld. This is very distressing for Mr Henderson who was a highly skilled welder earning a significant pay. As a result he has suffered extreme financial problems and actually went bankrupt in Oct 1999. He currently has no superannuation and is living in his own home which has a mortgage on it. Prior to the accident Mr Henderson had never suffered any psychiatric disorder and there is no family history of any psychiatric disorder. In addition prior to the accident he used to drink 40grms of beer a week, but since the accident, and indeed more recently, he has been drinking up to 50grms of beer a week in addition to half a bottle of whisky a week over the last one year ."
Specific Symptoms
18. Dr Proud notes "Mr Henderson described his mood as sad and says that occasionally he cries. He was preoccupied with the loss of work and his financial difficulties and more recently gave him a sense of with the poor health of his wife. He said that work was important for him in that it gave him a sense of being useful, self esteem, and a sense of self, as well as a role in his family and life. It also provided money." (Tribunal's emphasis).
He continues "He also described diminished energy, diminished libido, diminished motivation and diminished ability to enjoy many aspects of his life".
Mental State Examination
19. Dr Proud notes, "[the applicant] showed no agitation and appeared interested and motivated to learn more about his illness and how he could remedy his problems. He showed more distress when talking about his wife's current situation, and the strain it has placed upon his relationship. He readily acknowledged that he is reluctant to accept that he has psychological difficulties and that he prefers to focus on helping his wife, than helping himself" (Tribunal's emphasis).
Sexual Function
20. The Applicant relates his current sexual function as 1, compared to his pre-accident level of 10.
Interpersonal Functioning
21. "He currently rates himself at 1, compared to his pre-accident level of 10."
Domestic Functioning
22. "He used to enjoy doing handyman work and doing vehicle repair, but now he has very little energy and interest or motivation to do these" (Tribunal's emphasis).
Social Functioning
23. " Mr Henderson does not socialise at all at the moment and currently rates his ability in this area as 0, compared with his pre accident level of 10."
Prior to his wife's accident he rated himself at 5. Prior to his own accident he used to go to barbecues, dinner with friends, the theatre with his wife and friends, dancing with his wife, and family outings. After his accident he lost interest and motivation in these activities and this has completely deteriorated since his wife's major depression." (Tribunal's emphasis).
Recreation functioning
24. "Prior to the accident he used to do recreational shooting and fishing as well as go bush walking. He used to dance with his wife. Following his accident and prior to his wife's accident all of these recreational functioning has diminished. The diminution of these functions (and they all rate according to Mr Henderson about 3, compared to the pre accident level of 10) are all due to depressive symptoms such as lack of energy, lack of motivation, and lack of interest." (Tribunal's emphasis).
25. In response to specific questions put to him in the request for the report by the applicant’s Lawyer, Dr Proud noted:
“…
(b) Condition upon examination
"Mr Henderson is currently suffering from major depression and alcohol abuse."
(c) Treatment carried out
"He is currently receiving no treatment for the above two conditions."
(d) Prognosis
"Resolution of Mr Henderson's psychiatric disorders will depend upon his ability to resume and stabilise his financial situation It will also depend on the resolution of his wife's current psychiatric disorder and an improvement in their current relationship." (Tribunal's emphasis).
(e) Where relevant, the degree and period of incapacity for work.
"From a Psychiatrist's point of view Mr Henderson is completely incapacitated at the
moment. He retains a strong motivation to resume work and resumption of appropriate work will be an important factor in the amelioration of his psychiatric disorder."
(g) Whether or not my client has any retained working capacity and if so what it is if relevant.
"I am not qualified to state whether Mr Henderson has physical working capacity. From the Psychiatric point of view Mr Henderson retains a strong motivation to resume work. With stabilisation of his current psychiatric condition, he would be in my view ready to resume appropriate employment.
(h)If treatment is required then please state the regularity and duration of such treatment and the likely costs involved.
"Mr Henderson should receive anti depressant medication as well as some individual
supportive psycho therapy. I believe that some marriage counselling at present would also be very helpful".
(i)Whether or not my client has any psychiatric problem that directly or indirectly relate to this accident and whether they are likely to be permanent.
In answering this question Dr Proud noted "Mr Henderson had no pre accident vulnerability factors that could account for his post accident major depression". (The Tribunal was told be Mr Henderson that his father was treated with ECT for a mental illness). Regarding whether the psychiatric problem will be likely to be permanent, Dr Proud noted that "the permanence or not of these psychiatric symptoms will depend on two factors. Namely the clinical condition of his wife's depression and the state of their relationship, and whether Mr Henderson is able to rejoin the workforce".
26. The Tribunal notes that the applicant did secure a job with Darco Engineering in August 2001-15 months after he saw Dr Proud.
27. In his final summary Dr Proud noted - "However it is my view that Mr Henderson's condition will not completely resolve until he is able to resume some form of employment or until the financial situation has significantly stabilised. Given these factors he will still probably be left with a psychiatric impairment of 15 points until he can gain some form of employment." (Tribunal's emphasis).
Analysis of the first report of Dr Proud dated 21 May 2000 (Exhibit A3)
28. After considering this report carefully, the Tribunal finds that on 21 May 2000 the applicant had a psychiatric illness, namely major depression, and that, though not acknowledged to Dr Proud, the applicant had a family history of psychiatric illness which he revealed to the Tribunal (Tribunal's emphasis).
29. The Tribunal also finds, based on this report, that the permanence or otherwise of his illness was heavily contingent on the applicant's financial situation easing and his wife's psychiatric illness and their marriage relationship improving and whether the applicant would be able to rejoin the work force.
30. On the evidence before the Tribunal it appears that subsequent to seeing Dr Proud, the applicant's financial situation eased a little, as he obtained AUD$25,000 as an out of Court settlement which helped him stabilise to some extent his financial situation. However, the wife's situation deteriorated, and the relationship also deteriorated until it ruptured sometime later.
31. After 32 attempts, the applicant did succeed in obtaining a job that could be claimed as likely to boost his self esteem - but he was not able to hold it largely due to his respiratory condition and his arm condition. Since his condition of major depression involved lack of energy, lack of motivation and lack of interest, it is possible that these psychiatric factors also may have contributed to the loss of his job and lack of motivation to work.
32. In his second report dated 24 March 2004 (Exhibit A6), Dr Proud noted - "As a result of not working, and the difficulties with his wife, his daughter's illness and the financial problems from not working, he has become depressed. But he has attempted to deal with it himself rather than seek professional help". He continues, "His self esteem is low because he is not working. He says his energy, sex drive, motivation, concentration, short term memory and enjoyment of life are low."
33. The Tribunal notes that all these symptoms are very characteristic of major depression.
34. Dr Proud went onto say, "I am able to say that psychiatrically speaking his major depression confers upon him a partial incapacity for work. (He could probably only work 8 -12 hrs a week in a position for which he is suited by virtue of his age, qualifications and experience.)"
35. The Tribunal notes that the Applicant saw Dr Proud on a referral from his lawyer on 21 May 2000 and, not long after on 6 June 2000 he saw Dr Andrew Harper, an Occupational Physician, again also on a referral from his lawyer.
36. The Tribunal notes that copies of both these reports were not sent to the applicant's treating General Practitioner as there was no indication of this on the report. Further, though he saw Dr Proud just over two weeks before he saw the Occupational Physician, he does not appear to have told Dr Harper that he had seen Dr Proud who had just diagnosed him as having major depression. Dr Harper makes no mention of depression in his report, though he noted that his physical symptoms caused him to discontinue fishing, horse riding, dancing and shooting. The Tribunal notes Dr Proud’s observations that a few days before the applicant saw Dr Harper, shooting, fishing and dancing diminished from a rank of 10 down to a rank of 3, due to depressive symptoms, such as lack of energy, lack of motivation and lack of interest.
37. The Tribunal notes that this situation is indicative of the dichotomy between the soma and the psyche which unfortunately still permeates medicine and the lay perception of psychiatric illness today.
38. The Tribunal also understands that unfortunately there is still a stigma attached to psychiatric illness, and sometimes this leads to a denial of psychiatric illness, or fear of psychiatric illness, and the remedies available, especially with concerns about ECT and side effects of medications, and loss of “control” of one's life.
39. After listening to the applicant's evidence the Tribunal is convinced that these factors played a part in his approach to his psychiatric illness and what appears to be his reluctance to inform even his General Practitioner of it.
40. The relevant provisions of the Act are as follows:
Qualification for disability support pension – continuing inability to work
94.(1) 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;
(ii)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
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Meaning of continuing inability
94.(2) 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 nom 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.
Note: For 'work' see subsection (5).
94.(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:
(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.
41. The relevant provisions of the Social Security (Administration) Act1999 are:
Review by AAT limited to decisions reviewed by SSAT
181. The AAT may only review a decision that has been reviewed by the SSAT.
Schedule 2 - Rules for working out start day
Part 2 - General rules
Start day – general rule
3.(1) If:
(a) a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
3.(2) A person’s start day in relation to a concession card for which the person is qualified under:
(a) Division 1 of Part 2A.1 of the 1991 Act; or
(b) Subdivision A of Division 3 of that Part;
is the first day on which the person is qualified for the card.
3.(3) If:
(a)a person makes a claim for a seniors health card or a health care card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act; and
(b)the person is qualified for the card on the day on which the claim is made;
the person’s start day in relation to the card is the day on which the claim is made.
Start day-early claim
4.(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The Issues
42. The issues before the Tribunal:
1.Whether the Tribunal was justified in its decision to consider new evidence of a psychiatric ailment not considered by the SSAT.
2. Were the Applicant’s physical impairments documented, diagnosed, treated, and stabilised and likely to be permanent?
3. Did they attract a score of 20 points or more on the impairment tables?
4. Was the disease of major depression present in 2002 and 2003 and was that disease documented, diagnosed, treated and stabilised and likely to be permanent?
5. a) Whether Major Depression was an impairment that should be given a rating; and
b) if so, what rating should be given;
c) what is the effect of the Major Depression on his ability to work?
With regard to 2 & 3 above, the respondent has conceded that these requirements are met, and the Tribunal finds that the concession was correctly made.
Reasons for the Tribunal considering a psychiatric ailment in its review of the SSAT decision
43. A careful reading of the SSAT decision at T2 page 4-8 showed that the medical report of Dr Anderson dated 11.12.99 was available for consideration by the SSAT. This report clearly indicated that the applicant was suffering from an emotional complaint as well as his physical complaint.
44. In this letter Dr Anderson notes that Dr Musk had placed him on a 10% disability in relation to his chest condition. He went on to state “many specialists do not seem to understand the circumstances of the work force and the socio economic pressures which people find themselves, in Barry Henderson’s case relating to obtaining work with both a physical and an emotional disability at the present time. For this reason I consider that he has a total body permanent disability at 20% level to allow reconciliation of his outstanding affairs.” (Exhibit A4)
45. This was a medical report that had to be considered and as it came from a medical specialist who had noted “Knowing the circumstances of the family as I do, this man is not in a fit state to undertake a management role as a junior executive in an organisation because of the emotional strain under which he has been placed”.
46. It was a duty of the Tribunal, in its inquisitorial role to consider issues of “ability to work”, to question the applicant about his emotional state which may indicate (as Dr Anderson suggests), an emotional disability in addition to the physical disability.
47. An “emotional disability” could be indicative, and under certain conditions, could trigger a more severe psychiatric disability that could not only add to the disability rating, but more importantly could impact on “ability to work 30 hrs per week”, and to be “retrained for other type of work in the next two years”.
48. The SSAT decision did not mention Dr Anderson’s concern for his emotional state, and does not reveal that the applicant was questioned about this.
49. The Tribunal therefore felt that if it was to stand in the shoes of the SSAT – it should in its inquisitorial role – seek further clarification and evidence in relation to emotional or related psychiatric ailments that could bear on the decision, particularly on “the ability to work 30 hrs per week” and “ability to be retrained over two years”.
50. It only remains for the Tribunal to find –
a)Whether major depression was an impairment that could be given a rating; and
(b) If so what rating should it be given;
(c) What is the effect of the depression on his ability to work?
Findings
51. The Tribunal found the Applicant to be an intelligent man who had shown discipline and reached a high level of physical fitness in the sport of wrestling. He lived an active life enjoying himself with activities such as shooting and dancing. He worked hard and achieved a good position as a highly skilled welder and was earning well from it.
52. The Tribunal finds also that the medical evidence of Dr Musk and Dr Harper support a diagnosis of acute laryngotracheo bronchitis which resulted in damage to that portion the respiratory tree between the larynx and the branching of the trachea into two bronchi - largely leaving the upper respiratory passages like the nasal mucus membranes and throat relatively clear, and the lower respiratory tree -the smaller bronchi and the lung tissues relatively intact. Dr Musk's lung functions tests in fact show that his lung function was better than normal. This is not surprising in an erstwhile athlete who had won the amateur welter weight wrestling title in New Zealand.
53. The Tribunal was also impressed by the Applicant’s ability to control his alcohol abuse on his own without a psychologist’s continuous support or special program, which indicated discipline, self control, will power and intelligence, no doubt strengthened by his sporting training.
54. The Tribunal also found that he had a good grasp of the nature of his tracheitis and had a good rapport with his GP regarding his physical ailment and that he was compliant with his medications, used medications wisely and did not abuse them. He appeared to have a phobia of psychiatric treatment after he saw how his father deteriorated under psychiatric care including electro convulsive therapy.
55. His evidence was that Dr Proud and Dr Harper both motivated him to get back into the work place in order presumably to regain some self esteem and it appears that he did apply for many jobs but did not land a single because he had to say he was injured at work, and confess to his age. The Tribunal is aware that the open work place is both mentally and physically tough excepting sheltered work places. The applicant was in a situation in that although he did require to be sheltered from irritants and infections because of his tracheitis he was not one requiring a "sheltered work place", but had to find work where some degree of protection from irritant fumes and respiratory infections would be found.
56. The Tribunal finds that the correct test for a suitable work place for him that would address these issues would be "is the risk of exposure to irritants and infections at that work place greater than the risk he suffers from exposure to these irritants and infection in his day to day pursuits when he is not working". The Tribunal finds that he does not pass this test. The Tribunal finds that it is not difficult to find a work place that can satisfy these criteria, and that such places of work do exist today.
57. He told the Tribunal that he landed a job with Darco Engineering which appeared to be a clerical position where his understanding of welding would be an advantage - but after nine weeks he was discharged as he was not able to cope due mainly to his respiratory condition which was irritated by diesel fumes present in the vicinity, and also because of his physical problems with difficulty in writing for long spells. This particular employment is an example of a work place that was clearly not suitable for him with regard to his respiratory condition and arm condition though it may have helped him financially and helped his self esteem.
58. The Tribunal noted that his separation certificate noted lack of work rather than inability to cope as the reason for his losing his job. The Tribunal believed him when he said that his employer was making it easier for him.
59. Based on the material before it, and the Tribunal’s findings that work places that will allow for the Applicant’s needs for avoiding fumes, irritants and infections like the flu are available in the work place - it finds that these factors alone would not have significant impact when considering whether he could work 30hrs a week.
60. After considering the Psychiatrist's reports of 2000 and 2004 and all the material before it, the Tribunal notes that his illness was contributed to not only by a reaction to the severe external stressors that Dr Proud outlined - but by the likelihood of an inherited vulnerability that could impact on the severity and intractability of his illness.
61. The Tribunal finds that after he received his out of court settlement of A$25,000/= and reorganised his finances after going bankrupt, one of the external pressures namely financial constraints did ease somewhat. However, through 2002 and 2003 this had further deteriorated together with further deterioration of other key factors noted by the psychiatrist – i.e. his relationship with his wife, which ultimately severed, and the illness of his daughter. The Tribunal finds that there is an unbroken thread of deterioration in his condition through the four years except for the slight up-turn just mentioned.
62. By 2003, his situation with regard to stressors was worse than in 2000, and considering that just one year later in 2004 he can only do 12 hrs work per week. The Tribunal finds that, due to the applicant’s major depression alone, and its effect on his motivation, he would not have been able to work 30hrs per week in 2002 and 2003.
63. The Tribunal considered the impact of his condition of major depression on his ability to work. The psychiatrist had indicated at numerous parts of his report how the applicant has lost interest in things he used to enjoy and how his motivation has suffered. In his evidence the applicant also tried to explain that he found it hard to motivate himself and that his energy levels had diminished.
64. The Tribunal considered some of the other factors that could have reduced the Applicant’s motivation to seek work or actually do work. There was a fear of working because his lawyer had warned him not to work as he might have a lesser payout if he did. The Applicant said that he was told this quite "early in the piece" and the Tribunal finds that some reluctance to seek work may have stemmed from this cause.
65. He also did have a fear of exposure to chemical irritants and fumes which tended to make him choosey about work places and this fear was genuine. He did try to remain in the field where he had expertise, knew the culture and had contacts in order to help his self esteem. However his attempt at Darco to do this was a failure.
66. The Tribunal was impressed by the severity of the series of major tribulations that followed one on top of the other and which combined to overwhelm his mental resources - strong as they seem to have been. This triggered the condition of major depression which is notorious for causing pathological loss of motivation which the Psychiatrist attested to in regard to almost all aspects of his functioning.
67. The Tribunal did not find on the material before it that his severe loss of motivation to work was in any way fraudulent or self seeking and accepts the psychiatrist's view that because of his major depression alone he is unable to work more than 12 hrs per week.
68. If this condition of major depression and the disability it causes him, as has been found above, is to help the Applicant to obtain DSP, the Act requires that once a disease is claimed to cause disability, this disability has to be assessed using a statute backed set of impairment tables (Schedule 1B -Tables for the Assessment of Work-Related Impairment for Disability Support Pension).
69. This in turn requires that for a disease to be assessed under these tables it must be shown to have been diagnosed, documented, treated and stabilised and likely to be permanent – i.e. last for at least two years.
70. In order to put the Applicant’s major depression to this test the Tribunal studied the introduction to the tables and followed its guidelines. The Tribunal found paragraphs 2, 4, 5 and 6 of particular use and relevance in this case:
·Paragraph 4 notes that "a rating is only to be assigned after comprehensive history and examination".
·Also where the nature of the psychiatric or intellectual disorder is unclear appropriate investigation should be arranged.
·The Tribunal finds that the Applicant’s psychiatric impairment of major depression has passed this test on both occasions when he was seen.
·Paragraph 5 - The condition must be considered 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 would persist for the foreseeable future. This will be taken as lasting for more than two years". It also goes on to say, "the condition mentioned may be considered fully stabilised, if it is unlikely that there will be any significant functional improvement with or without treatment" (Tribunal' s emphasis).
·This conclusion is also supported by paragraph 6 which says "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 treatment is likely to lead to significant functional improvement within the next two 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 treatment or procedure is of a type regularly undertaken or performed with a high success rate and low risk to the patient."
·It goes on to say “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 impairment 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.
Whether the applicant’s condition of major depression is permanent, treated and stabilised will depend also on his condition satisfying paragraphs 5 & 6, which allows one to consider a variety of situations.
71. Paragraph 5 says -"A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement with or without treatment within the next two years". The applicant’s major depression falls well within this definition, because there has been no significant functional improvement between 2000 and 2004, more than two years in fact, without formal treatment for which there is support from paragraph 6, “where reasonable treatment is not available at reasonable cost”. In the Applicant’s particular case, cost of treatment was a vital ingredient to his ability to access it. Further it is clear that the applicant was afraid of medications and had a fear particularly of psychiatric interventions, having seen his father’s reaction to ECT.
72. Therefore, the applicant satisfies the criterion that “In those cases where significant functional improvement is not expected, or where there are medical or other compelling reasons for a person not undertaking treatment, it may be reasonable to consider the condition stabilised”.
73. On this basis the Tribunal finds that the applicant’s major depression is fully documented and diagnosed and has been investigated by a fully qualified psychiatrist and could be considered stabilised and permanent. This psychiatric disease of major depression therefore satisfies the legislation to warrant it being an impairment that can be given a rating depending on the functional impairment it causes. Based on the impairment tables, the Tribunal finds that he has "moderate and regular symptoms and is generally functioning with some difficulty….” and so he has a rating of 10 points on the table for psychiatric disorders - giving him a combined rating of 30 points for his physical and psychiatric ailments.
74. Regarding his ability to work 30 hrs per week, the Tribunal finds that the condition of major depression first diagnosed in 2000 has continued and excepting for a slight ease after his financial relief from the out of court settlement - has got worse over time. Extrapolating backwards from his situation currently where the psychiatrist has found that he cannot do more than 12 hrs work a week on account of his psychiatric disability, the Tribunal finds that it is reasonable to conclude that throughout 2002 and 2003 he would still have not been able to do 30hrs of work per week, due to his major depression, and the Tribunal so finds.
75. The Tribunal notes that based on his major depression alone the Applicant is able to work only 12 hrs a week if we take the upper limit that Dr Proud quoted. This is well below the 30hrs per week requirement of the Act and does not even take into consideration physical injuries that have already allowed him to pass the hurdle of Section 94(1)(b).
76. For these reasons the Tribunal finds that the Applicant’s physical and mental conditions as they stand in Sept 2004 result in his inability to work as defined by the Act and that the Applicant also satisfied section 94 (1)(a)(b) and (c) of the Act throughout the years 2002 and 2003.
77. Based on these findings and the reasons given, the Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 11 July 2003, and, in substitution therefor, decides that the applicant is eligible for disability support pension from 10 May 2002 on the basis that he satisfies the requirements of s 94(1) of the Social Security Act 1991 (Cth) and the Tribunal finds also that the Applicant has been unable to work 30 hrs per week due to his physical and mental impairments on the date he applied for DSP i.e. on 10 May 2002 on the basis of the application of Schedule 2 rules for working out start day, Part 2 s 3(1).
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Weerasooriya, Member
Signed: .............(sgd V Wong)........................................
AssociateDate/s of Hearing 16 January, 26 July 2004
Date of Decision 14 October 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr A Holt
Solicitor for the Respondent Service Recovery Team, Centrelink
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Qualification for Disability Support Pension
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Pathological Lack of Motivation
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Use of New Evidence
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