Karen Watson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 361
[2013] AATA 361
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1912
Re
Karen Watson
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 31 May 2013 Place Melbourne The Tribunal sets aside the decision under review and in substitution decides that Ms Watson qualifies for disability support pension from 1 August 2011.
[sgd]........................................................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension – chronic major depressive disorder – condition fully treated, stabilised and permanent – continuing inability to work – decision set aside.
Legislation
Social Security Act 1991 s 94(1)
Tables For The Assessment Of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Social Security Act 1991.
REASONS FOR DECISION
Dr Kerry Breen, Member
31 May 2013
Ms Karen Watson applied to Centrelink for a disability support pension (DSP) on 14 August 2011. Ms Watson had expressed an intention to claim DSP on 1 August 2011. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent). Ms Watson’s application was supported by a Medical Report DSP (MRD) dated 10 August 2011 completed by Dr Tarquin Oehr. The MRD gave a diagnosis of major depressive disorder and an expectation that this condition would impact on Ms Watson’s ability to function for more than 24 months. Her application was also supported by a report from a counsellor, Ms Sue Lenzi, she had attended since 2003.
On 18 August 2011 Ms Watson attended for a job capacity assessment (JCA). On 30 August 2011 a Centrelink officer rejected Ms Watson’s DSP claim. Ms Watson requested a reconsideration of this decision. On 21 November 2011 a Centrelink authorised review officer (ARO) wrote to Ms Watson affirming the original decision.
Ms Watson then applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT affirmed the ARO’s decision on 2 April 2012. On 8 May 2012 Ms Watson applied to this Tribunal for a review of the SSAT decision.
THE ISSUES
The issues to be determined are:
·Does Ms Watson have a physical, intellectual or psychiatric impairment?
·What impairment ratings do her conditions attract? and
·If the total impairment rating is 20 points or more, what is the impact of these conditions on her capacity to work?
The relevant assessment period is from 1 August 2011 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Tables For The Assessment Of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables).
Section 94(1) provides that:
(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; …
The Introduction to the Impairment Tables provides that:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years. ...
CONTENTIONS
Ms Watson contended that the decision not to grant her DSP is wrong because her treating general practitioner and her counsellor have advised that she is too unwell to work and that her disability is likely to last for at least 24 months.
The respondent accepted that Ms Watson suffers from major depressive disorder but contended that the condition does not comply with the Act as her condition (as at August 2011) had not been fully treated and stabilised as she had not consulted a psychiatrist. Hence, her condition could not be deemed to be permanent.
THE EVIDENCE
Karen Watson
Ms Watson gave oral evidence to the Tribunal and provided additional background material in the form of a typed six page account of her circumstances and relevant information pertaining to my application. This document was dated 13 March 2012 and had been originally submitted to the SSAT.
Ms Watson explained that it was not until after she began to see Ms Lenzi (her counsellor) in 2003 that she became aware that she suffered from depression. In hindsight, she now thinks that her illness commenced when she was 14 years old and a brother, who was five years older than her and to whom she was very close, died. She stated that a psychiatrist she consulted in 2012 had explained to her that she suffered from a background dysthymia. She indicated that she accepted this diagnosis readily as she had long felt that she had been born with something radically different.
In 2003 Ms Watson experienced a breakdown that took the form of suddenly one day finding herself very tearful and being unable to continue in her part-time role as a singer for a band. This occurred at the time she had responsibility for placing her ailing father in a nursing home and when a close friend had died. (Ms Watson’s father died in 2004). Aware that she needed help, she approached a telephone service and made an appointment to see a counsellor but the counsellor failed to keep the appointment. She made contact with a second counsellor, Ms Lenzi, who Ms Watson has seen regularly since 2003. Ms Watson described Ms Lenzi as leading her gently to the understanding that she was suffering from depression.
After commencing counselling with Ms Lenzi, in August 2004 Ms Watson attended a general medical practice in St Alban’s where she was treated with antidepressants. Initially she was prescribed Zoloft which she discontinued as it made her feel spaced out. She was then prescribed a second antidepressant that she took for 12 months but with little improvement. Ms Watson ceased taking the second antidepressant when the prescription ran out. In 2007, Ms Watson experienced a further breakdown and stated that she was unable to access help from the St Alban’s medical practice.
Ms Watson stated that a friend recommended that she see a Dr Oehr in Richmond as he was interested in mental health. She first attended Dr Oehr in 2007 and has attended him regularly since then.
Ms Watson explained that her breakdown in 2007 was related to pressure she was under, as her mother’s health had deteriorated and Ms Watson had to become her mother’s carer. Ms Watson had been living with her mother since December 2003 and had been hoping to find her own flat, when her mother’s health worsened in 2007. Dr Oehr prescribed Effexor and Ms Watson observed some improvement, stating that it keeps you out of deep depression.
Ms Watson had worked in Melbourne for a Sydney-based company between 1997 and 2007 but was made redundant in 2007. She briefly but unsuccessfully attempted to run a jewellery business from home. From 2007 until her mother’s death in 2011 she received carer’s allowance.
When questioned about her state of health at the time of her DSP application in August 2011, Ms Watson described a marked worsening of her long-term depression and ascribed this to a number of stressful events, beginning with the stress of coping with her brother’s diagnosis of lung cancer in 2010 and his subsequent death in February 2011. In the detailed document provided to the SSAT, Ms Watson wrote that on the day of her brother’s death, she learned that her mother had secondary disease from her breast cancer. Her brother’s death was followed three weeks later by her mother experiencing a stroke and dying of her cancer not long after.
Ms Watson described that during the time that she had to cope with the illnesses and then the funerals of her brother and her mother, she seemed able to deal with six things at once but after their deaths, she felt overwhelmed, alone and unable to cope. The stress upon her was compounded when two months after her mother’s funeral she received a letter from a lawyer acting on behalf of her estranged sister requesting access to her mother’s will. She described the receipt of this letter as being the end of the road for her as it emphasised how alone she was in the world.
Ms Watson stated that a couple of months after her mother died she was not coping, was feeling overwhelmed and was constantly breaking into tears. When asked to describe how she managed with daily living, Ms Watson stated that she continues to experience the same difficulties as those suffered at around August 2011 (the time of her application for DSP). Ms Watson described a house that was not cleaned or vacuumed, failing to attend to personal hygiene for weeks on end and having no social life. She stated that she only leaves her house to go the supermarket. Any contact with her small number of friends is by telephone.
In her oral evidence, Ms Watson alluded to her perceived lack of support from her parents at the time of her brother’s death when she was only 14 years old. [More detailed information about Ms Watson’s family relationships is provided in her written statement given to the SSAT.] Ms Watson stated that as a young person she had mentioned to her parents that there were many times when she went to sleep hoping she would not wake up in the morning but that her parents did not respond to her indirect request for help.
Ms Watson remains in contact with the adult son and daughter of her deceased brother and receives their support. She described a recent experience of her late brother’s family being unable to contact her as her telephone had been cut off. Knowing that she had expressed ideas of suicide, her brother’s family were fearful for her life. Ms Watson stated that her nephew had then made her promise that she would never commit suicide. She told the Tribunal that it was only this promise that was stopping her taking such action.
Ms Watson explained that she only sought referral to a psychiatrist after it became clear to her that the opinion of a psychiatrist might assist her claim for DSP. She stated that she preferred not to see a psychiatrist or psychologist because this would involve her going back over her life story which she found too distressing. In addition, she said that she could not afford to see a psychiatrist or psychologist.
In answer to questions from the respondent’s solicitor, Ms Watson explained that she had been given power of attorney for her father and her mother in 2009. In regard to her health at and since August 2011, Ms Watson stated that ongoing psychological and financial stresses made her depression worse.
Dr Tarquin Oehr
Dr Oehr gave evidence to the Tribunal by telephone. He stated that in addition to the usual qualifying degrees of Bachelor of Medicine/Bachelor of Surgery he held the postgraduate qualification of MRCP (Membership of the Royal College of Physicians UK), and that he had been in general practice since 1982. He had a particular interest in mental health, had undertaken two years training in family therapy, regularly took training in cognitive behavioural therapy and had considerable experience in treating patients with anxiety and depression. He estimated that in his current practice, depression was the second most common condition that he treated (after hypertension).
Dr Oehr estimated that he only referred approximately 10% of depressed patients to psychiatrists while referring around 50% to psychologists. He explained that in general, referral to a psychiatrist was primarily for review of a patient’s antidepressant medication as any counselling was provided by himself or a psychologist. In the case of Ms Watson, he considered that a psychiatrist referral was not needed as the psychiatrist would only juggle medications. Dr Oehr had considered referring Ms Watson to a clinical psychologist but had decided against this as Ms Watson was attending a counsellor (Ms Lenzi) in whom she had trust. In addition, he felt confidence in Ms Lenzi as she regularly sent him progress reports. In response to a question from the respondent’s solicitor about referral to a psychologist, Dr Oehr stated that it would have been inappropriate to interfere with the good relationship Ms Watson had with her counsellor.
Dr Oehr stated that he had treated Ms Watson for depression since 2007 and that with ups and downs she had remained depressed since then and up to the present. He agreed that the grief she had experienced in 2011 had exacerbated her depression.
Dr Oehr was asked about the symptoms experienced by Ms Watson around August 2011. His notes at that time recorded the deaths of Ms Watson’s brother and mother, the estrangement from her sister, and that she was very low and severely depressed. He stated that Ms Watson was unable to undertake normal daily activities, had difficulty thinking and difficulty in concentrating. He was asked about how her depression would affect her capacity to work and he identified issues of motivation, capacity to organise tasks and to think coherently.
WRITTEN EVIDENCE
The medical and other written evidence available to the Tribunal included the following:
·a Centrelink Medical Report DSP dated 10 August 2011, completed and signed by Dr Tarquin Oehr of Richmond;
·an undated letter from Ms Sue Lenzi, counsellor, received by Centrelink on 16 August 2011;
·a letter dated 28 March 2012 addressed to whom it may concern from Ms Lenzi;
·a letter dated 29 March 2012 addressed to whom it may concern from Dr Oehr;
·a letter dated 10 May 2012 addressed to Dr Oehr from Dr Linda Kader, consultant psychiatrist; and
·a letter dated 6 December 2012 addressed to whom it may concern from Dr Kader.
In addition, the Tribunal was provided with a copy of the JCA report of Ms Katrina Barnard dated 18 August 2011.
The medical report from Dr Oehr dated 10 August 2011 gave the diagnosis as MAJOR DEPRESSIVE ILLNESS, with onset in 2008. Under the heading History, Dr Oehr wrote LONGSTANDING DEPRESSION WORSE PAST 2 MONTHS. Under the heading Current symptoms, Dr Oehr wrote LOW MOOD, POOR SLEEP, LOW MOTIVATION. Current treatment was listed as MEDICATION, COUNSELLING. In response to question H, about how the condition affects Ms Watson’s ability to function, Dr Oehr wrote UNABLE TO PERFORM DAILY ACTIVITIES. In response to question I The current impact of this condition on the patient’s ability to function is expected to persist for, Dr Oehr ticked the box More than 24 months. In response to question J Within the next 2 years the effect of this condition on the patient’s ability to function is expected to, Dr Oehr ticked the box Remain unchanged.
In the letter received by Centrelink on 16 August 2011, Ms Lenzi, counsellor, detailed her involvement in the care of Ms Watson since 2003. Ms Lenzi wrote that She is suffering from clinical depression related to grief following the loss of multiple family members and friends. Ms Lenzi noted Karen has been suicidal in the past. She emphasised in the letter Ms Watson’s loss of her brother and mother, leaving her only immediate living relative to be her sister, who has long been estranged from the family, and wrote of Ms Watson feeling hopeless and alone. Ms Lenzi wrote:
Given the depth and severity of her losses, the fact that she has been suicidal before and is currently under treatment for depression, it is not feasible to expect Karen to re-enter the workforce at this time. Karen is aware that she will need to work in the future but needs time to process what has happened to her.
In her letter dated 28 March 2012 Ms Lenzi noted the presence of a major depressive illness from which she is unlikely to recover within the next 2 years. Ms Lenzi wrote:
Karen is compliant with appointments but her depression is currently preventing her from completing even the simplest of tasks including self care. She is struggling to make decisions and cannot cope with any pressure either in her personal life or in the workplace. Karen is suffering severe insomnia, and is reporting thoughts of suicide. …. Given the severity of her illness it is extremely unlikely that Karen will be able to work or undertake any training activities in the next 2 years.
In his letter dated 29 March 2012, Dr Oehr wrote (in part):
As a result of her treatment-resistant depression, Karen is totally unfit to perform any type of work at present and is not likely to improve significantly over the next two years.
Dr Kader, consultant psychiatrist, assessed Ms Watson on 3 May 2012 and wrote to Dr Oehr with her assessment in a letter dated 10 May 2012. In that two-page letter, Dr Kader concluded:
In my impression Karen has chronic major depression with a background dysthymia…. I would strongly recommend her to continue with venlafaxine…. I would strongly support her claim for DSP through Centrelink as at this time, as she is unable to maintain any employment and support herself financially.
In a subsequent letter dated 6 December 2012, Dr Kader, noting that she had seen Ms Watson on one occasion, wrote I wish to confirm that Karen suffers from chronic recurrent depression… and she has had this condition for several years. Dr Kader added, At this stage, I would say that it is a permanent condition and I would offer her a score of 30 (as requested [on] the disability scale you provided to her).
In her report of the JCA conducted on 18 August 2011, Ms Barnard, a registered psychologist, observed that:
It is possible with time and the continuation of current treatment the client’s depressive symptoms may improve. The client has not been referred to a psychiatrist in the past, and this may also be a future treatment option if necessary.
Ms Barnard then noted Symptoms include low mood, apathy, emotional numbing, social withdrawal, impaired appetite, insomnia, impaired memory and concentration. Ms Barnard recommended that Ms Watson’s condition had not been fully treated and stabilised and could not be deemed permanent. Accordingly, Ms Barnard did not make an impairment rating. Ms Barnard assessed Ms Watson’s capacity for work within two years with intervention as 15-22 hours per week.
CONSIDERATION OF THE ISSUES
Does Ms Watson have a physical, intellectual or psychiatric impairment?
The evidence of Dr Oehr, supported by Ms Watson’s own story, makes it very clear to the Tribunal that Ms Watson suffers from a longstanding major depressive disorder which is difficult to treat and severe in its effects. This diagnosis was conceded by the respondent as meeting the requirement of s 94(1)(a) of the Act.
Was Ms Watson’s condition permanent?
In order that an impairment rating can be made, it is first necessary to determine if Ms Watson’s diagnosed condition has been fully treated and stabilised and that any associated impairment is likely to last more than 24 months. The Tribunal first notes the unusually extensive training and experience in mental health that Dr Oehr brings to his general practice. Dr Oehr’s evidence was that the impact of Ms Watson’s condition was likely to last more than 24 months. It was also his evidence that Ms Watson was unlikely to obtain any additional benefit from seeing a psychiatrist or being referred to a psychologist. It was his opinion that a psychiatrist was likely to offer only manipulation of Ms Watson’s antidepressant medication. In the view of the Tribunal, this opinion was supported (albeit after the period of assessment for DSP) by the report of psychiatrist Dr Kader.
Dr Oehr had clearly contemplated whether Ms Watson should be referred to a clinical psychologist but had determined that, as Ms Watson was attending a counsellor in whom she placed great trust, and whose capacity Dr Oehr had good reason to respect, such a referral was unnecessary and could even worsen Ms Watson’s mental state.
Dr Oehr’s opinion as to the duration of the impact of Ms Watson’s depression was supported by Ms Lenzi, who has seen Ms Watson for her depressive condition regularly since 2003. In addition, this was the view reached independently by the psychiatrist Dr Kader, when she assessed Ms Watson in May 2012. While the evaluation by Dr Kader relates to a time some six months after the DSP assessment period, in the view of the Tribunal Dr Kader’s opinion is of some relevance, given the longstanding nature of Ms Watson’s depressive disorder and Ms Watson’s oral evidence that her condition had not changed significantly between the date of her DSP claim and her attendance before the Tribunal.
The only contrary evidence before the Tribunal is the opinion of the assessor Ms Barnard, who conducted the JCA on 18 August 2011. Her opinion (as summarised by the Tribunal) was that Ms Watson needed to see a psychiatrist before her depression could be deemed to be permanent and that in the next two years, with treatment, Ms Watson was likely to be able to work for 15-22 hours.
The Tribunal notes that Ms Barnard is a registered psychologist. Ms Barnard’s JCA report made no reference to Dr Oehr’s recommendation regarding the predicted long‑term impact of Ms Watson’s chronic major depression and effectively ignored it. This seems inconsistent with the advice on determining permanent impairment contained in Chapter 1 of A Guide to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Guide) which on page 13 reads:
Medical judgement is usually required to evaluate the available medical evidence and determine if the permanence criteria have been satisfied. The question that needs to be answered generally is whether anything (eg further time or therapeutic intervention) is likely to result in significant functional improvement within the next two years. It is expected that this will usually require a comprehensive history and examination.
In addition, Ms Barnard did not mention similar advice provided by the counsellor, Ms Lenzi, who Ms Watson had seen regularly since 2003. Instead, Ms Barnard appeared to over-emphasise the role of grief, while minimising the relevance of Ms Watson’s background chronic depressive state.
Given the circumscribed nature of the medical evidence contained in Dr Oehr’s medical report of 10 August 2011, the conclusions reached by Ms Barnard are understandable. Ms Barnard did not have the benefit of hearing the evidence of Dr Oehr in regard to his training and experience in mental health and his reasons for not referring Ms Watson to a psychiatrist or psychologist. It is also possible that Ms Barnard subconsciously applied her own professional judgement to the question of the prognosis of Ms Watson’s depression which was not her role.
Having had the benefit of hearing directly from Dr Oehr and after consideration of the reports of Ms Lenzi and Dr Kader, the Tribunal prefers the professional opinion of Dr Oehr to that of Ms Barnard. The Tribunal is satisfied that at the time of her claim for DSP, Ms Watson’s major depressive illness was fully treated and stabilised and the impact of her depression was likely to last 24 months. Accordingly, as required under s 94 of the Act and the Impairment Tables, Ms Watson’s condition was permanent.
What impairment rating does Ms Watson’s condition attract?
Under s 94(1) of the Act, points under the Impairment Tables can only be allocated if a condition is deemed to be permanent. Paragraph 5 of the introduction to the Impairment Tables reads:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
While paragraph 6 reads:
In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
The relevant Table for making an impairment rating in Ms Watson’s case is Table 6 Psychiatric Impairment. The Tribunal notes that Dr Kader who assessed Ms Watson and examined Table 6 recommended a rating of 30 impairment points in December 2012. The Tribunal is aware that this rating was made some six months after the end of Ms Watson’s DSP claim assessment period. However, given Ms Watson’s oral evidence (which was not controverted) that her condition has altered very little between August 2011 and the Tribunal hearing, the Tribunal does attach some weight to Dr Kader’s rating.
The assessment of psychiatric impairment is contained in Chapter 7 of the Guide, GUIDE TO TABLE 6. – PSYCHIATRIC IMPAIRMENT. The introduction to this chapter reads in part:
Table 6 is used to assess permanent impairment resulting from psychiatric conditions. As clinical signs and investigation results are generally of limited benefit in the assessment of these conditions, medical judgement is required to establish a detailed psychiatric and functional history and to provide a mental state assessment. If there is insufficient clinical information available, it may be necessary to obtain a current or recent specialist report. This may be required to determine the severity of the psychiatric impairment and its prognosis over the next two years.
…
Determining a reliable level of psychiatric impairment:
It is important to distinguish between temporary and permanent psychiatric disorders as this table is only used for assessing psychiatric conditions that result in permanent impairment. A permanent rating can only be assigned if it is considered that the psychiatric condition and its resulting impairment will last for at least two years and significant functional improvement is unlikely to occur within that period. This requires that the condition causing the impairment has been fully diagnosed, treated and stabilised. (Refer also to Section (K) – Chapter 1.)
Establishing an exact psychiatric diagnosis however, is only important if this will determine the prognosis over the next two years. For example, the prognosis may vary depending on whether a depressed person is diagnosed with a severe chronic depressive disorder or an acute adjustment disorder with reactive depression due to a personal stressor (eg recent marital breakdown). The latter diagnosis is usually considered to be temporary in nature as it is likely to improve and hence an impairment rating should not be assigned initially. However, if it is apparent that regardless of what the exact psychiatric diagnosis is and regardless of what treatment is received, a person’s impairment is not expected to improve significantly within two years, then it would be unnecessary to refer for specialist review solely to confirm a diagnosis. A permanent rating can be assigned accordingly in this case.
In determining whether the psychiatric disorder has been fully treated and stabilised, one should consider whether the person has received optimal and “reasonable” psychiatric treatment and whether with or without such treatment, the person’s level of function will improve within two years. If for example, specialist advice is that a person would benefit from treatment with long-term psychotherapy but that significant functional improvement is not expected to occur for many years, then the psychiatric impairment may be considered permanent and rated accordingly.
…
TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
….
TEN
Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work)
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms ). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work. THIRTY Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant)
…
The Tribunal observes that Chapter 7 states that as part of determining of an impairment rating medical judgement is required to establish a detailed psychiatric and functional history assessment. The document at this point does not state or imply that the detailed psychiatric history must be taken by a qualified psychiatrist. Rather, the doctor involved is expected to take a psychiatric and functional history. The Tribunal is satisfied that Dr Oehr was eminently capable of taking such a history and that, in making his recommendations in his medical report of 10 August 2011 (see para 29 above) about Ms Watson’s capacity to work during the next 24 months, Dr Oehr had so done.
The Tribunal also observes that there are aspects of Table 6 that appear illogical or poorly thought through. The guidance provided for making a rating of 20 impairment points focuses on:
… serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms).
However, the guidance provided for a rating of 30 points focuses on matters of everyday functioning as follows:
… major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework)…
In the view of the Tribunal, all of the examples of impaired functioning provided under the heading of 30 points should also apply when considering the awarding of 20 points, allowing of course for differing degrees of impairment in everyday functioning.
A related issue that arises from the wording of the guidance provided for making a rating according to Table 6 is the apparent interchangeability of the phrases treatment by a psychiatrist and psychiatric treatment. Given that earlier advice in Chapter 7 about the use of Table 6 makes it clear that the Table may be applied without recourse to a report from a psychiatrist, and given that prescribing antidepressants is a form of psychiatric treatment, it is the view of the Tribunal that the phrase treatment by a psychiatrist (introduced when listing the criteria for 20 impairment points) has been used to give an indication of the seriousness or severity of those psychiatric symptoms commonly associated with significant impairment. The Tribunal does not accept the view that these words mean that an assessment by a psychiatrist is mandatory before 20 points can be awarded.
In case the Tribunal is wrong in the view expressed in para 49, the Tribunal is nevertheless satisfied that Dr Oehr, although not a formally qualified psychiatrist, was capable of providing and was providing psychiatric treatment to Ms Watson. It is also satisfied that Dr Oehr was well equipped, by virtue of his training and experience, to provide advice about whether impairment will last for at least two years and significant functional improvement is unlikely to occur within that period.
The Tribunal is satisfied that Ms Watson was and is still experiencing serious symptomatology and impairment in functioning that requires psychiatric treatment. Having regard to the degree of impairment attested to by Dr Oehr and Ms Lenzi, to the account given on oath by Ms Watson of her impairment in August 2011 and her ongoing condition, to the opinion expressed by Dr Kader, and after carefully considering Table 6, it is the view of the Tribunal that the appropriate impairment rating for Ms Watson’s condition lies between 20 and 30 points. In applying the Impairment Tables, the decision maker is not free to use a rating other than those provided and is advised in the Guide that where a choice has to be made between two impairment ratings, the lower rating must be used, unless the impairment fully meets the criteria for the higher rating. Accordingly, the Tribunal deems that the correct rating for Ms Watson is 20 impairment points.
Does Ms Watson have a continuing inability to work?
The Tribunal notes that Dr Oehr and Ms Lenzi advised that Ms Watson was not well enough to re-enter the workforce or undertake any training at the time of her DSP application or during the next 24 months. Although her assessment was made some months after the relevant time period, Dr Kader reached the same conclusion. Ms Barnard who conducted the JCA in August 2011 reached a different conclusion (see para 35).
Having heard Ms Watson’s compelling oral evidence, and having read her detailed account of her struggles, the Tribunal prefers the opinion and advice of Ms Watson’s treating doctor and her counsellor. The Tribunal is satisfied that at the time of her DSP claim, Ms Watson did have a continuing inability to work.
CONCLUSION
The Tribunal is satisfied that Ms Watson suffers from the condition of chronic major depressive disorder. Thus she meets the requirements of s 94(1)(a) of the Act.
The Tribunal is also satisfied that at the time of her application for DSP, Ms Watson’s condition had been fully treated and stabilised, was likely to continue for 24 months and was permanent. Therefore, she meets the requirements of s 94(1)(b) of the Act and the Impairment Tables.
Applying Table 6 of the Impairment Tables, the Tribunal finds that Ms Watson’s condition attracts an impairment rating of 20 points, thereby meeting the requirements of s 94(1)(b) of the Act and the Impairment Tables.
The Tribunal also finds that during the relevant period Ms Watson had a continuing inability to work, thereby satisfying s 94(1)(c) of the Act.
Having met all the requirements of s 94 of the Act, Ms Watson is entitled to DSP from 1 August 2011. Her application is successful.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Ms Watson qualifies for disability support pension from 1 August 2011.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. [sgd]..........................................................
K. Randall, Associate
Dated 31 May 2013
Date of hearing 8 May 2013 Applicant In person Solicitors for the Respondent Kellie Latta, Sparke Helmore Lawyers
1
0
0