MARK HINDS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 271

[2012] AATA 271

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5404
Re	MARK HINDS
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr P McDermott, RFD, Senior Member
Date	8 May 2012
Place	Brisbane

The Tribunal affirms the decision under review

.............[Sgd]........................................................

Dr P McDermott, RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment Tables – Nil impairment rating assignable – No continuing inability to work – Decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) Schedule 2

Social Security Act 1991 (Cth) s 94, Schedule 1B

CASES

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

Senior Member Dr P McDermott, RFD, Senior Member

8 May 2012

INTRODUCTION

1. I have to decide whether Mr Mark Hinds (‘the applicant’) is qualified for the payment of disability support pension (DSP).

   BACKGROUND

2. On 28 June 2011, the applicant applied for DSP. In his application form the applicant stated that he suffered from ‘hiatus hernia’ and ‘severe anxiety and depression’. In the application form the applicant also mentioned that he had a ‘very low immune system’ and that he gets ‘sick frequently’. The application form was supported by a medical report of Dr Van Dansik, the treating general practitioner, dated 28 June 2011.

3. On 16 August 2011, Centrelink made a decision to reject the application for DSP. The applicant sought review of the decision. On 24 August 2011 Dr Van Dansik, provided a further medical report. On 31 August 2011, Ms Sherylyn Crisp, the treating psychologist, made a report upon the condition of the applicant. On 14 September 2011, an authorised review officer (ARO) affirmed the decision. The applicant sought a further review of the decision which was affirmed by the Social Security Appeals Tribunal on 18 October 2011.

   MEDICAL EVIDENCE

4. Dr Van Dansik, in his report dated 28 June 2011, indicated that the applicant suffered from depression. Dr Van Dansik opined that the condition was expected to significantly improve within the next two years. Dr Van Dansik in a later report dated 24 August 2011 opined that he was uncertain about the continuing impact of the condition over the next two years.

5. Ms Crisp, in her report dated 31 August 2011, indicated that she had been treating Mr Hinds since June 2011. He had attended three appointments with her on 21 June 2011, 19 July 2011 and 30 August 2011. Ms Crisp indicated that in her opinion, the applicant was unable to maintain employment due to anxiety with panic attacks and depression.

   JOB CAPACITY ASSESSMENT

6. Mr David Irving is a registered psychologist who is employed by Centrelink. In his report dated 12 July 2011, Mr Irving indicated that while the depression condition was permanent, it could not be assigned an impairment rating because the condition was not fully diagnosed, treated and stabilised. 

7. Mr Irving accepted that the applicant had a temporary reduced work capacity and commented:

   Mr Hinds’ work capacity is presently reduced on account of major depressive and acute anxiety symptoms.  He struggles to cope with domestic tasks, social demands, relatively minor stress and work experience (ie childcare placement). Mr Hinds will benefit from focussing on his psychological counselling and medical treatment for depression and anxiety.  A gradual increase in work capacity is then anticipated.

8. Mr Irving also remarked:

   Mr Hinds has longstanding depression and anxiety potentially beginning in childhood.  He has only recently commenced optimal treatment.  Symptom reduction with subsequent improvement in social and occupational functioning is thus expected during the coming months.       

   ISSUES

9. The issues to be decided in this application are, whether at the date of the application for disability support pension on 28 June 2011 (or within 13 weeks of that date), Mr Hinds had an impairment rating of at least 20 points under the Tables for the assessment of work-related impairment for DSP (‘the Impairment Tables’) and, whether Mr Hinds had a continuing inability to work.

   RELEVANT LEGISLATION

10. Clause 4 in Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth) provides as follows:

    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.

11. The application for DSP must be assessed as at 28 June 2011, or within 13 weeks of that time (‘the claim period’).[1]

    [1] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8].

12. The Social Security Act 1991 (Cth) (‘the Act’) sets out the qualification criteria for DSP. Having regard to s 94 of the Act (as it was in force at the relevant period) to qualify for DSP the applicant needed to meet the following criteria during the claim period:

    (a)The applicant had a physical, intellectual or psychiatric impairment (s 94(1)(a)).

    (b)The impairment must have been of 20 points or more under the Impairment Tables (s 94(1)(b)).

    (c)The applicant must have had a continuing inability to work (s 94(1)(c)).

13. The Introduction to the Impairment Tables which during the claim period was then contained in Schedule 1B of the Act provides as follows:

    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.

    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.

    In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

    •evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

    •indicate why this treatment is reasonable; and

    •note the reasons why the person has chosen not to have treatment

14. In assessing a person’s ability to work it is important to have regard to s 94(2) of the Act which during the claim period provided:

    (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 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.

15. During the claim period ‘work’ was defined as being work of at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not locally accessible by the person (s 94(5)). The assessment of whether or not a person has a continuing inability to work is highly dependent upon a close consideration of the person’s functional capacity, the types and nature of training and education available, and the classes of work that exist in Australia.

    CONSIDERATION

16. There is no issue that that during the claim period the applicant had a depressive condition which is a ‘physical, intellectual or psychiatric impairment’ within the meaning of s 94(1)(a) of the Act. I accept the evidence of Dr Van Dansik, the treating general practitioner, that the applicant has this impairment

17. I must consider whether the applicant has an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.

18. The medical report completed by Dr Van Dansik on 28 June 2011 indicated at Part J of the report that within the next 2 years the depression condition would ‘significantly improve’. However, in his later report of 24 August 2011, Dr Van Dansik was ‘uncertain’ whether within the next two years the condition would ‘significantly improve’: there is no explanation of his changed opinion.

19. Ms Crisp, in her report of 16 January 2012 opines: ‘It is anticipated that with optimal treatment Mr Hinds would make some improvement in his symptoms within the next two years’. Ms Crisp has opined that there would not be a significant functional improvement within the next two years. This is a suggestion that the longstanding condition of the applicant may have worsened after the claim period. 

20. Dr Van Dansik initially thought that there would be significant improvement of the depression condition within the next two years of his initial report. The most recent report of the treating psychologist contains the observation that with optimal treatment there would be some improvement. Having regard to this evidence, I have come to the conclusion that a rating cannot be assigned to the condition of the applicant. This is because the condition cannot be regarded as being fully stabilised. 

21. One difficulty in this case is that the applicant does not appear to have availed himself of available treatment. The Introduction to the Impairment Tables provides: “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”. Ms Crisp, the treating psychologist, informed the ARO that the applicant had not persisted with treatment in the past and that further psychological counselling is required before the condition would be regarded as fully treated.

22. The applicant had only commenced psychological treatment at the time when Mr Irving wrote his job capacity assessment report. The Introduction to the Impairment Tables provides that a rating cannot be assigned unless the condition has been treated.

23. I am not satisfied that the depressive condition of the applicant has been treated. The fact that the applicant has moved residence may have prevented him from receiving regular psychological treatment. An experienced welfare rights advocate who was to represent the applicant withdrew his representation of the applicant. The tenor of what the applicant told this Tribunal is that he had been advised by the advocate that his application had been prejudiced by his moving residence.

24. The other reason why I consider that I am unable to assign an impairment rating is because there is no evidence before me that the depression condition has been fully investigated. There is no report from a psychiatrist or a general practitioner about the nature of the depression condition of the applicant. The applicant has reported that his depression condition appears to have a long history. However, the applicant also gave evidence of his ability to undertake past studies and his most recent employment in food preparation at a club.

25. The other condition that is listed in the application form is the hiatus hernia condition. I accept the evidence of the applicant that he suffers from a hiatus hernia condition and that he is taking medication for the condition. I infer that the condition is not significant as it is not mentioned in any of the reports of Dr Van Dansik. When giving telephone evidence before me, the applicant stated that the condition may cause distress to him if he overexerts himself. Otherwise the condition appears to be controlled by medication. The applicant stated that an operation is available to him but that he has chosen not to have the operation. The applicant mentioned that he has chosen not to have the operation because the site of the hernia is near to his heart. There is, however, no suggestion that the relevant procedure is one which would have substantial risk. The procedure would appear to be ‘reasonable treatment’ which is available to the applicant. I do not consider that I can assign a rating to the hiatus hernia condition because the condition cannot be regarded as ‘investigated, treated and stabilised’. There is no medical evidence before me relating to the nature of the condition. As well the fact that the applicant has chosen not to have the procedure to correct the condition makes me come to the conclusion that the applicant has not availed himself of available treatment.

26. For the reasons above, I am unable to assign any impairment rating to either the depressive condition or the hiatus hernia.

27. Having regard to my previous findings it is strictly not necessary for me to consider whether during the claim period the applicant had a continuing inability to work. However, I make some observations about this issue for the information of the applicant.

28. In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, the operation of s 94(2) of the Act was considered by Drummond J who remarked that the first question posed by s 94(2)(a) is whether the impairment, ‘considered in isolation from other matters that may influence his attitude to working’, has such an impact on the person’s work capacity that he or she is prevented from doing work which he or she is ‘capable of performing, without the need for retraining’ (at 452).

29. Mr Irving, in his report, acknowledged that the applicant had a temporary reduced work capacity but that his future work capacity (within the next 24 months) with intervention would be 15-22 hours per week. This report is comprehensive and was not challenged by the applicant. I rely upon the report of Mr Irving and find that the applicant does not have a continuing inability to work within the meaning of s 94 of the Act.

30. Apart from the support given by his housemate, the applicant presently seems to live an isolated existence. He states that he is reluctant to leave his residence. This would impact on him receiving optimal treatment for his depressive condition. The applicant does not have any support from his family. I consider that it would be beneficial if the applicant receives assistance and support from a social worker at the earliest opportunity. The advocate who appeared for the Secretary has quite properly advised the applicant of the changing eligibility for DSP since he first submitted his application in 2011, and of his right to have another assessment of his entitlement to DSP.

    DECISION

31. I affirm the decision under review.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.

..............[Sgd]...........................................

Associate

Dated 8 May 2012

Date(s) of hearing  30 April 2012

Applicant  By telephone

Advocate for the respondent                Rick McQuinlan