Maher and Secretary, Department of Employment and Workplace Relations
[2006] AATA 1061
•8 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1061
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/222
GENERAL ADMINISTRATIVE DIVISION ) Re BRENDAN MAHER Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date8 December 2006
PlaceBrisbane (Heard in Ballina and by telephone)
DecisionThe Tribunal:-
1. Sets aside the decision under review;
2. Decides in substitution therefore that the applicant was qualified for payment of disability support pension.
...............Signed...............
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – chronic depression – whether permanent at time of original application – assignment of rating according to the impairment tables – continuing inability to work – decision under review set aside
Social Security Act 1991 (Cth) ss 94(1), 94(2)
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301
Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444
REASONS FOR DECISION
8 December 2006 Deputy President P E Hack SC
Introduction
1.The applicant, Mr Brendan Maher, has suffered from depression for a very long time. On 30 December 2004 he lodged a claim for disability support pension. In March 2005 the claim was refused on the grounds that his condition was not fully treated and stabilised.
2.The decision to refuse the claim was affirmed on internal review in November 2005 and by the Social Security Appeals Tribunal on 10 March 2006.
3.Mr Maher now seeks a review of the decision in this Tribunal.
4.The principal issue in this case is whether Mr Maher’s condition is capable of being rated under those Impairment Tables. If that issue is found in favour of Mr Maher it will be necessary to consider the issue of whether he had a continuing inability to work.
The legislation
5.By virtue of s 94(1) of the Social Security Act 1991 (Cth) a person is qualified for a disability support pension if, relevantly:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the impairment attracts a rating of at least 20 points under the Impairment Tables that are set out in Schedule 1B of the Social Security Act; and,
(c)the person has a continuing inability to work.
6.The opening paragraph of the Introduction to the Impairment Tables explains that they:
… are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work.
This purpose is sought to be achieved by assigning ratings in proportion to the severity of the impact of the medical condition on normal function.
7.Given the arguments of the parties in the present case it is also relevant to extract further passages from the Introduction that deal with the process of rating in these terms:
4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.
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, with the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
· what treatment or rehabilitation has occurred;
· whether treatment is still continuing or is planned in the near future;
· whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
8.By virtue of the Social Security (Administration) Act 1999 (Cth) the matters of qualification for disability support pension are to be considered on the date of lodgement of the claim, viz. 30 December 2004 or within 13 weeks thereafter.
Factual background
9.What follows seems not to be in issue.
10.In early 2003, at a time when Mr Maher was receiving Newstart allowance, he was seen by Ms Hampson, a clinical psychologist employed by Centrelink. Her task was to assess Mr Maher’s “work capacity”. Ms Hampson noted that Mr Maher had sought medical treatment for depression and that his general practitioner had recently prescribed anti-depressant medication. On that basis Ms Hampson concluded that Mr Maher’s condition was not stabilised and that accordingly no impairment rating was given. She did however note that Mr Maher’s symptoms were “of sufficient severity to interfere with general functioning and ability to work.”
11.Thereafter, and I infer, in support of an application for disability support pension, Mr Maher lodged a report from his general practitioner, Dr Nicholson. It appears to be dated 22 October 2004. Dr Nicholson reported that Mr Maher had a confirmed diagnosis of depression with onset in 1992. He regarded the symptoms as likely to persist for more than two years. Dr Nicholson described the treatment as:
Rest
Healthy living
12.As a consequence of the lodgement of the claim for disability support pension Mr Maher was seen by Dr Balestrieri on 9 March 2005. Dr Balestrieri is a general practitioner. He noted that:
Client was referred to psychiatrist Dr D Johns in Byron but despite feeling better for talking to him was never compliant with any prescribed medication.
Dr Balestrieri regarded the functional impact of Mr Maher’s condition (which he described as dysthymic disorder) as temporary because it had not been fully stabilised or treated.
13.In the result Centrelink rejected the claim for disability support pension by letter dated 17 March 2005.
14.Subsequently Dr Johns, a psychiatrist, provided a report dated 15 July 2005. That doctor reported as follows:
No current treatment. Originally saw me in 2001. Didn’t want to take medication then. Then saw psychologist June Gibson who also advised medication. Has been treated by several general practitioners. … Applied for DSP this year but rejected. Now wants to reapply because he’s unable to motivate himself because of chronic depressive state which is almost certainly part of his personality structure. I think he should try an antidepressant but I think the prognosis is not good. Started on Zoloft … today. Lack of general motivation can result in non-compliance. Overally [sic] level of functioning appears very low because of symptoms.
Dr Johns said that Mr Maher’s prognosis was “uncertain but appears not good based on history.”
15.That report appears to have provoked a “file assessment” ie a review of the papers only, undertaken on 28 September 2005 by Dr Milns, described as a “medical advisor” with an organisation called Health Services Australia. Dr Milns seems to be a general practitioner. His report seems, with respect, to add nothing to the store of knowledge of Mr Maher’s condition although I note that Dr Milns described the functional impact of Mr Maher’s condition as being temporary because of the “recent commencement of treatment.”
16.In any event, it was following the receipt of that report that the decision was affirmed by the original decision maker on 21 October 2005 and by an authorised review officer on 15 November 2005.
17.Thereafter there was an appeal to the Social Security Appeals Tribunal. At that hearing on 10 March 2006 Mr Maher produced additional reports from Dr Johns dated 20 February 2006 and from Dr Nicholson dated 8 March 2006. The report of Dr Johns described the then current treatment as:
Support and reassurance to prevent further deterioration as condition is now chronic.
The future treatment indicated by Dr Johns was the continuation of the then current treatment. Dr Nicholson’s report was to similar effect.
The evidence at hearing
18.At the hearing I had the benefit of evidence from Mr Maher and his de facto partner, Ms Whittaker, and from Dr Balestrieri. In addition I had further statements from Dr Johns dated 10 May 2006 and 4 August 2006. In the former, Dr Johns refers to his first consultation with Mr Maher in March 2001 when he presented with “a life-long Depressive Disorder”. Dr Johns continued:
The condition had stabilised then and it would be unrealistic to expect that there was any form of treatment which would have cured Mr Maher of his chronic psychiatric condition.
19.In his subsequent report Dr Johns expanded upon Mr Maher’s condition at that consultation in these terms:
It was my conclusion that Mr Maher was suffering from a Major Depressive Disorder which had, over the length of time, permeated all aspects of his personality and had stabilised, in that it was highly unlikely that any form of treatment would now reverse the process. I did offer Mr Maher anti-depressant medication, not with the idea that his condition could be reversed, but with the idea that such medication may make life a little more comfortable for him. He did not wish to take medication, because of his previous issues with substance abuse, so my management consisted of support and reassurance with a view to preventing any further deterioration in his mental state.
…
As I have stated earlier, it would have been unrealistic at the time Mr Maher applied for a Disability Support Pension to expect that there was any form of treatment which would have cured Mr Maher of his chronic psychiatric condition. Nor would there have been sufficient improvement to enable him to again work after not having been able to do so since 1992.
It continues to be my opinion that Mr Maher is totally incapacitated for any form of employment because of his chronic condition and that this disability will continue for more than two (2) years.
20.At an adjourned hearing Dr Johns, who had not been available at the earlier hearing, gave evidence by telephone and was cross-examined by Mr Black who appeared for the Secretary. Dr Johns said of Mr Maher’s presentation in July 2005 that it was much the same as it had been when he had first seen Mr Maher in 2001. His condition then was chronic and it was highly unlikely that any treatment would assist. In the opinion of Dr Johns the condition of Mr Maher in July 2005 was likely to have been the same in March 2005, that is, within 13 weeks of Mr Maher’s application for disability support.
21.Dr Johns said that his goal with treatment in 2005 was to “prevent further deterioration”. Treatment at that time could provide a marginal and subjective improvement and prevent any worsening of Mr Maher’s condition but it could not improve Mr Maher’s level of functioning. Although Dr Johns was not asked directly whether Mr Maher’s condition answered the criteria for a 20 point impairment rating he did not suggest that it was an inadequate or overstated description of Mr Maher’s condition when it was read out to him. I infer that he agreed with it as an adequate description of Mr Maher’s condition.
22.Mr Maher gave evidence in his statement of his aversion to drugs. At an earlier time in his life he had difficulty with substance abuse and, when offered the possibility of treatment with medication by Dr Johns, decided not to proceed in that way. He was concerned not to rely on any form of medication having finally got rid of his earlier substance addictions. In addition he was concerned with possible side effects of the medication suggested.
The parties’ contentions
23.The applicant contends that he satisfied all of the criteria for the grant of a disability support pension, that is, that he had an impairment that was, at the relevant time, fully diagnosed, treated and stabilised and that warranted an assessment of 20 points on the assessment tables and that he had a continuing inability to work.
24.The case for the Secretary accepted that there was an impairment but argued that the condition was not permanent because Mr Maher had not undertaken all reasonable medical treatment which treatment was likely to lead, in the opinion of Dr Balestrieri, to significant functional improvement within the next two years. And, the Secretary submitted, the better view of the evidence was that no continuing inability to work was shown.
Was the impairment permanent
25.In considering this issue I accept the evidence of Dr Johns and prefer it to that of Dr Balestrieri. On an issue of psychiatric condition it seems to me that ordinarily the opinion of a specialist psychiatrist ought be preferred to that of a general practitioner unless there is reason to doubt the basis of the opinion of the psychiatrist as, for example, where a flawed history was relied upon or where the opinion is self-evidently illogical. I intend no disrespect to Dr Balestrieri in not accepting his evidence, but in my view Dr Johns had greater qualifications and experience. In addition he had a greater opportunity of clinical consultation with Mr Maher. His views, and the logic that informed them, impressed me.
26.It is significant that his opinion was that Mr Maher’s condition was stabilised at the relevant time and that no treatment would improve Mr Maher’s level of functioning. From his evidence I conclude that Mr Maher’s condition was fully diagnosed and stabilised. I am unable to accept the Secretary’s contention that the condition was not fully treated because Mr Maher had not taken medication. In my view any failure to take medication did not affect the issue of treatment. That is so because, as Dr Johns said, treatment would, at best, create a marginal subjective improvement, that is Mr Maher “would not be so bothered”. It would not improve his level of functioning. Moreover, it seems to me, having regard to Mr Maher’s history of substance abuse, that his earlier aversion to chemical therapy was genuinely based upon genuine grounds.[1]
[1] See Dragojlovic v Director-General of Social Security (1984) 1 FCR 301.
27.In my view, Mr Maher’s condition in December 2004 was fully diagnosed, stabilised and treated. It was thus permanent and capable of being assessed by reference to the impairment tables.
The impairment tables
28.Because, to date, the focus of attention has been on the question of permanency of impairment there is not a great deal of evidence directed precisely to the question of impairment rating. What there is, however, leads me to conclude that a rating of 20 points is appropriate.
29.First, as I have observed, I infer that Dr Johns regards Mr Maher’s condition as answering the criteria provided for an assessment of 20 points. But beyond that it is obvious from the medical evidence that Mr Maher has a psychiatric disorder (chronic depression) that requires treatment by a psychiatrist. The evidence of Mr Maher and his partner describes significant interference in interpersonal relationships. There was no challenge to that evidence. I accept it.
30.Finally Dr Johns describes Mr Maher as “totally incapacitated for any form of employment”. That accords with the criterion “serious disruption of work attendance or ability to work”. More importantly, it demonstrates that Mr Maher’s capacity is worse than the criteria for a 10 point rating which speaks of an impairment that would not prevent fulltime work.
31.On the basis of this evidence I am satisfied that Mr Maher’s impairment warrants an impairment rating of 20 points.
Incapacity for work
32.The third qualification to be satisfied is that the person has a continuing inability to work. That expression is given meaning by s 94(2) which is in these terms:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
33.Subsection 94(2) is still in the form that it was when it was considered by Drummond J in Secretary, Department of Social Security v Pusnjak.[2] In the circumstances of the present case it is useful to set out a lengthy extract from his Honour’s judgement:[3]
Effect will be given to the intention of legislation if the secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skill and experience, capable of performing, without the need for retraining? If so: As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the secretary that he has the requisite continuing inability to work. If not, the secretary must proceed to consider s 94(2)(b)(ii) and ask: As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?
[2] [1999] FCA 994; 56 ALD 444.
[3] At p 452, para [32].
34.It would seem, from the extract of the evidence of Dr Johns set out in paragraph 19 above that the s 94(2)(a) question ought be answered favourably to Mr Maher. That is, if his chronic condition is such that he is prevented from doing any work, then it must be right to say that he is prevented, by that condition, from doing work within the somewhat narrower scope posed in s 94(2)(a).
35.The second question is more difficult. Because the issue has not been the focus of any attention in the decision-making process to date there is limited evidence on the point. In the medical assessments prepared by Dr Balestrieri (9 March 2005) and Dr Milns (28 September 2005) reference is made to an expected improvement in capacity to do work within a time frame of 6 to 24 months with educational training, vocational training or on-the-job training although this was the same assessment as that without any intervention. In those assessments a question was asked about the types of assistance “that would best assist the customer to improve economic and social participation”. Amongst the options given are educational training, pre-vocational training and on-the-job assistance. Despite that both doctors have ticked the box for “Would not benefit from participation in programs”.
36.There is, as well, Dr Johns’ view that Mr Maher is “totally incapacitated for any form of employment because of his chronic condition and this will continue for more than two (2) years”.
37.From this evidence I infer Mr Maher’s impairment is, of itself, sufficient to prevent him from undertaking the training spoken of in the statute. But even if that was an erroneous view, the assessments of Dr Balestrieri and Dr Milns would lead me to conclude that with that training Mr Maher is unlikely to acquire the skills or experience necessary to fit him to do work within the next two years.
38.It follows that I would set aside the decision under review and, in lieu thereof, decide that the applicant was qualified for the grant of a disability support pension.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ....................Signed..............................................
Leisa Pendle, AssociateDates of Hearing 16 October 2006, 24 November 2006
Date of Decision 8 December 2006
Solicitor for the Applicant Ms L Dillon-Smith, Legal Aid NSW
Solicitor for the Respondent Mr M Black, Centrelink Legal Services
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