Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 331

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4440

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KELLI NETHERWOOD

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date18 May 2011

PlaceAlbury, NSW

Decision The decision under review is set aside and in place thereof the Tribunal decides that Ms Netherwood qualified for a Disability Support Pension on 20 January 2010.

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

Mr S. Webb, Member

CATCHWORDS

Disability Support Pension - disabling condition not fully understood - diagnosis of depression, generalised myalgia and anxiety - aspects of presentation require further investigation - long history of variable symptoms - sporadic treatment - condition likely to persist without abatement for at least two years - continuing inability to work for more than 15 hours per week - decision set aside

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

Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 4

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360

REASONS FOR DECISION

18 May 2011 Mr S. Webb, Member         

1.      Kelli Netherwood claimed a Disability Support Pension (DSP), but her claim was rejected by primary determination and on review. She is not happy with this result.

2. The issues to be decided are whether Ms Netherwood has an impairment of 20 or more points under the Impairment Tables set out at Schedule 1B of the Social Security Act 1991 (the Act) and, if so, whether she has a continuing inability to work.

3.      The brief facts are as follows. Ms Netherwood has experienced variable symptoms of depression, anxiety and myalgia for many years. She left school at the age of 14, and has only limited experience of employment. She has had no paid employment for more than 11 years and resides alone with her son.

4.      Job capacity assessments have been undertaken from time to time. On 25 January 2008 Dr Roger Coleman, Ms Netherwood’s (then) treating general practitioner, certified that Ms Netherwood suffered from depression with anxiety that rendered her unfit for work or study[1]. On 13 February 2008 Ms Harders, a job capacity assessor, noted that Ms Netherwood suffered from depression and anxiety that restricted her work capacity to 0-7 hours, but these conditions were not fully diagnosed, treated and stabilised[2]. Ms Harders “envisaged that the client will be able to increase work capacity to 15-22 hours with appropriate support and assistance”[3]. On 15 December 2009 a further job capacity assessment was undertaken by Ms Torney, a registered occupational therapist. Ms Torney noted depression and anxiety, as well as pain – “client reported daily muscle pain, especially in the feet”; these conditions were not fully diagnosed, treated or stabilised, however[4]. Ms Torney reported that Ms Netherwood had a base line capacity for work of 30+ hours per week, but her temporary capacity for work was 15-22 hours per week[5].

[1] T4 folio 10.

[2] T5 folio 12.

[3] T5 folio 13.

[4] T6 folio 17.

[5] T6 folio 18.

5.      On or about 20 January 2010 Ms Netherwood claimed a DSP. The claim form is not in evidence. Apparently all that remains is the computer record at T7 folio 21 and a computer record that was not included in the Tribunal documents which was filed after the hearing[6]. On 25 January 2010 Ms Netherwood provided Centrelink with a Treating Doctor’s Report[7] by Dr Coleman. The Doctor diagnosed “generalised myalgia” and indicated that further investigations were planned.

[6] Letter dated 28 April 2011, Attachment A.

[7] T8 folio 23.

6.      On 3 March 2010 Ms Excell, a social worker, undertook a job capacity assessment in respect of Ms Netherwood. Ms Excell reported diagnoses “many years ago” of generalised myalgia, anxiety and depression[8]. These conditions were said to be verified by medical evidence and were described as “Permanent”, but they were not fully diagnosed, treated and stabilised in Ms Excell’s opinion. Ms Excell assessed Ms Netherwood’s “Current (baseline) capacity for work” as 8-14 hours per week that was likely to last for more than 2 years “without intervention” and 23-29 hours per week “with intervention”[9].

[8] T9 folio 29.

[9] T9 folio 30.

7.      On 1 April 2010 Centrelink notified Ms Netherwood that her claim for DSP had been rejected[10].

[10] T11.

8.      On 10 May 2010 Ms Netherwood lodged a further report by Dr Coleman in which he reported “weakness in arms and legs feels run down and muscles lock up. Has had depression in the past but wont [sic] take any medication”; the doctor’s diagnosis was “generalised weakness arms and legs”[11].

[11] T13 folio 39.

9.      Also on 10 May 2010 Ms Downey, a social worker, prepared a report for Centrelink and recommended that a further job capacity assessment be undertaken[12]. Consequently, on 7 June 2010, a job capacity assessment was undertaken by Ms Watson, a psychologist. Ms Watson reported conditions of generalised myalgia and anxiety that were not fully diagnosed, treated or stabilised, of which only the myalgia was verified at that time by medical evidence[13]. Ms Watson assessed Ms Netherwood’s “Current (baseline) capacity for work” at 8-14 hours per week and reported that “it is unlikely that the client will be able to increase work capacity beyond 14 hours per week in the absence of intervention”[14].

[12] T15.

[13] T16 folios 49 - 50.

[14] T16 folio 51.

10.     On 12 July 2010 an authorised review officer decided to affirm the determination to reject Ms Netherwood’s DSP claim[15]. This decision was affirmed by the Social Security Appeals Tribunal on 31 August 2010[16]. Ms Netherwood has applied for review of this decision.

[15] T18.

[16] T2.

11.     Ms Netherwood says that she suffers from life-long depression, anxiety and social phobias that prevent her from leaving her house for long periods, as well as chronic pain in most parts of her body, including in her lower limbs, back and neck. As a result of these conditions, she experiences difficulty sleeping. Her symptoms compel her to lie down and rest for at least 2 hours each day. She complains of variable mood and difficulties concentrating and with her memory. Ms Netherwood says that she cannot work.

12.     In her submission, her conditions are deteriorating over time. She says that her symptoms of pain increased in 2002 and have become gradually worse ever since. At that time, she says that she underwent a variety of tests and was referred to Dr Brooder, a neurologist, but the tests were not conclusive[17]. Ms Netherwood says that she continued to consult Dr Coleman and was prescribed various medications from time to time. Additionally, she says that occasionally she obtained amounts of Endone, an opioid medication for pain relief, from a family member. In her submission, if the doctor prescribed medication, she would take it, but the medications did not have a good or lasting effect. This stands against the evidence that she declined to take medications that were prescribed: see Dr Coleman’s observation at T8 folio 24 for example. Ms Netherwood appears to have lost confidence in Dr Coleman and expressed her disappointment about the level of detail in his treating doctor’s reports in which no reference is made to depression and anxiety. In her submission, her claim should not be rejected simply because her previous treating doctor did not provide sufficient information. Ms Netherwood declined to call the doctor or to adduce additional evidence from her medical records, even though she was provided with an opportunity to do so during the hearing.

[17] Exhibit 8.

13.     Even so, Ms Netherwood asserts that she has suffered from debilitating symptoms for many years and that her condition has deteriorated without remission or relief despite investigations and various medications prescribed by Dr Coleman. Ms Netherwood was plainly distressed by processes concerning the assessment and review of her claim for a DSP. She informed me that she found it very upsetting to repeatedly explain and prove the functional effects of her medical conditions; the processes of review, involving Centrelink, the authorised review officer, the Social Security Appeals Tribunal and now this Tribunal are stressful and have a deleterious effect on her equanimity and psychological balance. In her submission, there is sufficient evidence to establish that her disabling medical conditions are permanent and on-going, and that these conditions prevent her from working. On that basis, Ms Netherwood urged me to set aside the decision under review and grant her a DSP.

14.     The Respondent Secretary urged a contrary assessment. The Secretary says that Ms Netherwood’s claimed conditions are not presently fully investigated, diagnosed, treated or stabilised. In the Secretary’s submission, Ms Netherwood’s generalised myalgia condition had not been fully investigated by a neurologist at the date of claim or within the qualification period thereafter; those investigations were recommended by Dr Coleman in May 2010 and have not yet been undertaken. The Secretary relies on Dr Coleman’s evidence that the condition would be expected to improve significantly within 2 years with appropriate treatment.

15.     Furthermore, with regard to depression and anxiety, Dr Coleman did not refer to either of these conditions in his Treating Doctor’s Reports in January and May 2010. The Secretary asserts, therefore, that those conditions were not present or the subject of claim during the relevant period. The Secretary says that Ms Netherwood was not compliant with prescribed medications and she had not obtained all reasonable treatment for these conditions; the conditions had not been thoroughly assessed by a psychiatrist or other suitably qualified person when she made her DSP claim in January 2010. In the Secretary’s submission, these conditions could be expected to improve with further reasonable medical treatment within 2 years.

16.     Furthermore, even if Ms Netherwood’s conditions were fully diagnosed, treated and stabilised (which is not conceded), the Secretary asserts that Ms Netherwood does not have a continuing inability to work at least 15 hours per week. In the Secretary’s submission Ms Netherwood could be expected to work at least 15 hours per week within 2 years with appropriate interventions, as recommended by Ms Torney and Ms Excell. There is no evidence that Ms Netherwood’s impairments, alone, prevent her from undertaking training activities and such activities may well assist Ms Netherwood to obtain work in the open labour market commensurate with her skills and experience.

17.     For these reasons, in sum, the Secretary says that Ms Netherwood did not qualify for a DSP on that day of her claim or within 13 weeks thereafter and the decision under review should be affirmed.

18.     As will appear, I do not agree.

19. Under the Act, a person is entitled to a DSP if he or she suffers from a physical, intellectual or psychiatric impairment that warrants an impairment rating of 20 or more points under the Impairment Tables that are set out in Schedule 1B to the Act, and the person has a continuing inability to work[18]. Under the Social Security (Administration) Act 1999 (the Administration Act) a claimant must either qualify on the day the claim is made or within the period of 13 weeks thereafter for a DSP to be payable[19]. Thus, the period for consideration in respect of Ms Netherwood’s DSP claim that is the subject of these proceedings commences on 20 January 2010 and concludes thirteen weeks thereafter on 22 April 2010.

[18] Social Security Act 1991 s 94(1).

[19] Social Security (Administration) Act1999, Schedule 2, cl 4

20. It is not disputed that Ms Netherwood satisfies the first qualification criterion for DSP at section 94(1)(a) of the Act. Considering the present evidence, it is clear enough that Ms Netherwood suffered from and was disabled by depression, anxiety and generalised myalgia at the date of her claim for a DSP. These are conditions that result in physical and psychiatric impairments for the purposes of 94(1)(a).

21. The second qualification criterion for DSP requires that any impairments warrant a rating of 20 or more points under the Impairment Tables set out at Schedule 1B of the Act. The Tables set out empirical thresholds in relation to the effect of a person’s impairments on his or her ability to do work – the impairments to be assessed are functional impairments resulting from conditions that have been fully documented and diagnosed[20]. Furthermore, as the preamble to the Impairment Tables makes clear, an impairment rating is only to be assigned under the relevant Tables if the diagnosed condition has been investigated, treated and stabilised and is considered to be permanent: likely to continue for more than 2 years with or without reasonable treatment.

[20] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [7]-[10].

“Fully documented and diagnosed”

22.     On 25 January 2010 Dr Coleman diagnosed “generalised myalgia”[21]. On 10 May 2010 the doctor reported that “This has been going on for years, getting worse now”[22]. The account is consistent with Ms Netherwood’s evidence that her symptoms of pain became worse in or about 2002. This is supported by the evidence of Dr Chakma, who referred Ms Netherwood to Dr Brooder, a neurologist, on 27 November 2002 noting that:

“[Ms Netherwood] has been complaining of fatigue, muscle pain specially in the arms and back for over a year. All blood tests including FBE are within normal range and there is no neurological abnormalities including reflexes and muscle power.” [23]

[21] T4 folio 10 and T8 folio 23.

[22] T14 folio 44.

[23] Exhibit 8.

It appears that these medical examinations did not result in a clear explanation of the cause of Ms Netherwood’s symptoms of pain. The diagnosis ‘generalised myalgia’ reflects this conclusion, being a description of diffuse musculoskeletal pain and associated symptoms.

23. For the purposes of section 94 and the Impairment Tables in Schedule 1B it is not necessary for me to determine whether a particular diagnosis is correct. The correctness of a particular diagnostic label is perhaps of less moment for present purposes than the existence of documentation and the diagnosis of a particular condition. Dr Coleman’s diagnosis of generalised myalgia and the preceding documentation to which I have referred satisfies this requirement.

24.     Dr Coleman made no reference to depression and anxiety conditions in his Treating Doctor’s Report on 25 January 2010, but reportedly prescribed Cipramil[24]. I note that Cipramil is an anti-depressant medication, being a selective serotonin reuptake inhibitor[25]. Dr Coleman was not called to give evidence, so the reason for his prescription of this medication is not known. Ms Netherwood’s unchallenged evidence is that she has suffered from depression and anxiety for many years, since childhood, and these conditions were present when she made her claim for a DSP in January 2010. This history is supported by the evidence of Ms Harders, Ms Excell, Ms Downey, Ms Watson, Dr Evans and Ms Bester, a clinical psychologist. In her job capacity assessment on 13 February 2008 Ms Harders reported a diagnosis of “Depression” and “Anxiety” based on a medical certificate that is not presently in evidence[26]. In a later job capacity assessment on 3 March 2010, Ms Excell reported that Ms Netherwood “was diagnosed with Anxiety and Depression approximately 11 years ago”[27]. On 23 February 2011 Dr Evans certified a diagnosis of depression with a date of onset in 1990[28]. On 14 March 2011 Ms Bester reported “a long history of depression, which appears to be confirmed by her medical records” and diagnosed Major Depression and Generalised Anxiety Disorder[29]. Ms Netherwood was given an opportunity to adduce evidence from her medical records, but she declined to do so. Weighing the evidence on this point, it can reasonably be inferred and I am reasonably satisfied that Ms Netherwood was suffering from depression with anxiety in January 2010 and that the depression and anxiety was documented and diagnosed some years earlier.

[24] T8 folio 24.

[25] MIMS Annual, June 2010, p3-396.

[26] T5 folio 12.

[27] T9 folio 29.

[28] Exhibit 12.

[29] Exhibit 3.

25.     I note in passing that even though the assessments of Ms Downey, Ms Watson, Dr Evans and Ms Bester are well outside the 13 week period following Ms Netherwood’s DSP claim on 20 January 2010, it is relevant to have regard to these assessments in order to address her claim and decide whether or not she qualified for a DSP during that period. It is also relevant to note the evidence concerning the onset and progress of the various conditions over time. The Tribunal’s review is not confined to materials that were before the original or subsequent decision makers.

26.     Thus, in sum on this point, it is probable that Ms Netherwood’s conditions of depression with anxiety and generalised myalgia were diagnosed and documented at the date of her claim for DSP on 20 January 2010, and I so find.

“Investigated, treated and stabilised”

27.     Were each of these conditions investigated, treated and stabilised to the extent that they are considered to be permanent at that date or within 13 weeks thereafter? As will appear, I am reasonably satisfied that they were.

generalised myalgia

28.     As I have said Ms Netherwood’s pain condition was investigated in 2002[30]. On 15 December 2009 Ms Torney reported that chronic pain was a barrier: “Previous investigations could not find cause. No recent intervention or investigations”[31]. On 25 January 2010 Dr Coleman reported that past treatment for this condition was “Cipramil – prescribed but does not take tablets” and future treatment was “To have further blood tests”. Considering the history and Dr Coleman’s recommendation for further blood testing, his conclusion that the condition was expected to significantly improve within 2 years is somewhat surprising[32]. The doctor was not called to give evidence, so this aspect of his evidence could not be tested. Nevertheless, on 10 May 2010 Dr Coleman revised his opinion and reported that the likelihood of any improvement was uncertain[33]. He referred Ms Netherwood to Dr Brooder (the same neurologist to whom she was referred in 2002) in respect of her ongoing complaints “that all her nerves in arms and legs are aching, says her muscles lock up and are sore”. At this time Dr Coleman noted that “Blood tests are normal. I do not know where to go with her. This has been going on for years, getting worse now”[34]. This statement is not consistent with and does not support his earlier suggestion of significant improvement within 2 years. Clearly enough, having obtained further blood tests, Dr Coleman changed his mind on this point.

[30] Exhibit 8.

[31] T6 folio 17.

[32] T8 folio 24.

[33] T13 folio 40.

[34] T14 folio 44.

29. There is no compelling evidence that any improvement in Ms Netherwood’s pain condition was likely within 2 years of her claim for DSP on 20 January 2010. The fact of a second referral to Dr Brooder in May 2010, 8 years after the initial referral, does not persuade me to conclude that Ms Netherwood’s pain condition was not investigated, treated and stabilised. It is clear enough on the present evidence, including Ms Netherwood’s unchallenged account, that this condition was treated with pain medications without lasting effect. Ms Netherwood’s evidence is that she obtained some temporary relief from pain symptoms when taking medications such as Panamax and Endone, but she did not like to take these medications with any regularity as they have a stultifying effect on her mind. It appears that Dr Coleman also prescribed Ibuprofen and there is no evidence that Ms Netherwood did not comply with this prescription. By her account Dr Coleman also treated this condition with injections of Vitamin B in or about 2009, without effect. The absence of effective treatment should not be confused with no treatment at all; Schedule 1B does not require effective treatment. The test is whether the particular condition has been ‘investigated, treated and stabilised’.

30.     It can be accepted that the cause of Ms Netherwood’s myalgia condition is not presently known, but a diagnosis does not require clear identification of cause. Many are the diseases that may be described diagnostically without a clear understanding of precise cause; one only has to consider the case of many cancers for example. Unfortunately, too, the cause of some chronic pain conditions is not well understood. It appears that Ms Netherwood’s generalised myalgia may be in this category. It is possible that further investigations or advances in medical science may ultimately deliver an explanation, but such possibilities are presently speculative and not supported by evidence. It is not appropriate to determine Ms Netherwood’s claim for DSP on such speculative grounds, nor, to my mind, is it presently necessary to undertake further investigations addressing this point[35]. If the existence of a critical fact may easily be ascertained, it may be necessary to undertake further inquiries for the purposes of review[36], but I am not persuaded some other diagnosis of Ms Netherwood’s pain condition is required for the purposes of section 94 of the Act or, even if it was, that any such diagnosis could easily be ascertained.

[35] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [18]; upheld by a Full Court in Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [34].

[36] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].

31.     I note that Dr Coleman referred Ms Netherwood to Dr Brooder in 2010 but Ms Netherwood has not yet acted upon the referral as, by her account, she cannot afford to do so. There is no evidence, however, that a substantial improvement can reliably be expected as a result of a further examination by a neurologist. The initial consultation with Dr Brooder in 2002 did not result in a clear explanation of the cause of Ms Netherwood’s pain symptomatology or any significant improvement in her condition subsequently[37]. Why Dr Coleman formed the opinion and reported that a significant functional improvement in this condition could be expected within 2 years is far from clear. Even though Dr Coleman appears to have revised his opinion on this point in May 2010, his opinion as reported on 25 January 2010 remains as a possibility, but to my mind this is no more than conjecture in the absence of supporting evidence. Neither Dr Coleman nor Dr Brooder was called to give evidence.

[37] Exhibit 8.

32.     For these reasons, the proposition that such treatment would be likely to result in a significant functional improvement in Ms Netherwood’s generalised myalgia condition within the next 2 years is a matter attended by substantial doubt. To my mind, treatment of this kind is not within the meaning of ‘reasonable treatment’ for the purposes of clause 6 of the Introduction to the Impairment Tables. That said, one should encourage Ms Netherwood to pursue any possible treatment options in the hope of benefit even though such an outcome cannot be predicted with any reliability.

33.     While it is conceivable that Ms Netherwood’s pain is somehow related to her depression and anxiety, there is no probative evidence to support such a conception. Ms Netherwood was under Dr Coleman’s treatment for more than 10 years. If the doctor conceived of any such connection, one might expect to see some evidence of it; but there is none.

34.     To my mind, the apparent variability in the pattern of Ms Netherwood’s pain symptoms does not mean that her condition has not stabilised. The evidence of Dr Coleman, brief as it is, is substantially consistent with Ms Netherwood’s account of pain in various parts of her body, but especially in her lower limbs, associated with weakness, fatigue and difficulties sleeping. Many disabling medical conditions manifest in variable patterns of symptoms within their natural course, where the occurrence, frequency or intensity of symptoms may be affected by changing circumstances or particular phenomena, however well understood, in the daily life of a person with such an affliction. So, too, Ms Netherwood, it appears. But this does not mean that her generalised myalgia was not stabilised when she made her claim for a DSP in January 2010. Even though it appears that Dr Coleman’s treatment of this condition over a period of years did not result in remission and, by his account in May 2010, it was becoming worse, it does not follow, and the present evidence does not establish, that the condition was not investigated, treated and stabilised to the extent that it may properly be considered as permanent for the purposes of clause 5 of the Introduction to the Impairment Tables on or before the date of Ms Netherwood’s claim for DSP in January 2010. I am reasonably satisfied that it was, and I so find.

depression and anxiety

35.     As I have said Dr Coleman diagnosed “depression with anxiety” on 25 January 2008 and it is likely that his prescription of Cipramil in or about January 2010 was treatment for this condition, at least in part. It is not appropriate to reject Ms Netherwood’s claim simply because her depression with anxiety had been treated in a conventional manner or that further examination by another medical practitioner might suggest some other diagnosis or another form of treatment[38].

[38] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [17].

36.     With regard to the question whether Ms Netherwood’s depression and anxiety conditions were investigated, treated and stabilised to the extent that they should be considered as permanent, there is plain evidence that she obtained treatment in the form of counselling from Gateway Community Health (previously the Upper Hume Community Health Service) in 2007 and 2008[39], and from Tallangatta Health, Centrelink social workers and Lifeline Australia at various times. There is no evidence that she obtained counselling treatment in 2009, but by her own account she obtained treatment from Dr Coleman during this period and, subsequently, resumed counselling treatments as recommended. According to Ms Netherwood this form of treatment is helpful in alleviating her symptoms to some extent. That assessment appears to be consistent with the evidence of Dr Coleman, Dr Evans and Ms Bester. On Ms Bester’s evidence it appears that cognitive-behaviour counselling may be of benefit: Ms Netherwood “should be encouraged to persevere and try and find a medication which will effectively help to relieve her symptoms. A cognitive-behavioural based counselling process would probably also benefit Kelli. She has been encouraged to return for follow-up counselling”[40]. It is not clear whether or not the counselling treatment Ms Netherwood obtained over time prior to lodging her claim in January 2010 included this form of treatment; the sporadic nature of those treatments points to the contrary conclusion, at least insofar as a concerted program or “process” of such treatment is concerned. Even so, there is no probative evidence concerning the likelihood of such treatment reliably producing significant functional improvement in respect of Ms Netherwood’s depression with anxiety condition within 2 years. No evidence was adduced on this point.

[39] Exhibit 10.

[40] Exhibit 3, page 2.

37.     Ms Netherwood’s evidence is that she lives some distance away from services in Albury or Wodonga and it is difficult for her to attend appointments in those places, not least because of her anxiety condition and her childcare responsibilities as a sole parent. Furthermore, her evidence raises doubts about her ability to afford to pay for a treatment program of this kind.

38.     It is necessary to address the proposition arising from the evidence of Dr Coleman, Ms Harders, Ms Torney and Ms Excell that Ms Netherwood failed to comply with treatments prescribed by Dr Coleman in the form of particular antidepressant medications. Dr Coleman, Ms Harders, Ms Torney and Ms Excell were not called to give evidence, so this aspect of their evidence could not be tested. I note that Ms Excell stated that she relied on Dr Coleman’s report on this point; the basis of Ms Harders’ and Ms Torney’s observations is not so clear. Ms Netherwood staunchly denies that she failed to take prescribed medications; her evidence is that she took prescribed medications and other medications that were provided to her by family members and on presentation at a local hospital. She maintains that some of the antidepressant medications caused her to experience adverse side effects, including nausea, as a result of which she stopped taking them, although more recently she has been prescribed Efexor, which she has been taking without apparent adverse effects. It is far from clear, however, whether or not this medication is likely to result in a significant functional improvement within 2 years; there is no probative evidence to support any such conclusion.

39.     Thus, while it appears that Ms Netherwood has not always been compliant with prescribed treatments, it is not correct to conclude, generally, that she did not take medications that were prescribed for her. Furthermore, if one accepts her account that she stopped taking medications that caused unacceptable side effects, and this aspect of her evidence was not challenged, such action may well be reasonable and it is a relevant consideration for the purposes of clause 6 of the Introduction to the Impairment Tables.

40.     Ms Netherwood has not been assessed by a psychiatrist and I note that there may be difficulties obtaining an appointment in her local area[41]. It is conceivable that psychiatric assessment and treatment may result in a different diagnosis or some other form of treatment, but this is speculative. As I have said, Ms Netherwood was in Dr Coleman’s care for more than 10 years and it appears that the doctor treated her depression with anxiety by conventional means involving counselling and medications. One may expect that if the doctor considered referral to a psychiatrist to be required or beneficial, he would have done so; but there is no evidence that he did. I note that Ms Netherwood’s current treating general practitioner, Dr Evans, referred her to Ms Bester, a clinical psychologist.

[41] Exhibits 4 and 11 refer.

41.     Thus, I am reasonably satisfied that at the date of Ms Netherwood’s claim for a DSP or within 13 weeks thereafter, her depression with anxiety condition had been investigated, treated and stabilised to the extent that it should be considered as permanent for the purposes of clause 5 of the Introduction to the Impairment Tables.

42.     It follows that Ms Netherwood’s generalised myalgia and depression with anxiety conditions are fully diagnosed, treated and stabilised for the purposes of clause 6 and must, therefore, be assessed under any applicable Impairment Tables.

impairment assessment

43. For the purposes of clauses 2 and 7 of the Introduction to Schedule 1B it is necessary to determine which body systems have a functional impairment as a result of each condition[42], and then to assess the extent of that impairment in relation to the specific criteria in each applicable Table. The functional impairments resulting from Ms Netherwood’s depression with anxiety condition are of her mind and have a psychiatric character; Table 6 applies. The functional impairments resulting from her generalised myalgia involve pain in various parts of Ms Netherwood’s body; Table 20 applies.

[42] Secretary, Department of Employment and Workplace Relations v Parry [2007] 1606 at [8].

44.     There is, however, no evidence before me concerning the assessment of these conditions under any of the Impairment Tables. There are two ways of addressing this problem: either remit the matter to the Respondent Secretary with a direction to undertake further investigations on this point, or proceed to make an assessment on the basis of the present evidence (substantially Ms Netherwood’s evidence). The Secretary’s submissions on this point were brief and were primarily directed to the lack of permanence of the two conditions.

45.     As Ms Netherwood’s evidence concerning her functional impairments was not seriously challenged, and to my mind there is sufficient evidence on which to base assessments under the relevant Tables, I will adopt the latter course as the most efficient.

46.     Ms Netherwood’s psychiatric impairment appears to be consistent with the 10 point level under Table 6. By her own account and on the evidence of Ms Excell and Ms Watson, it is characterised by moderate and regular symptoms that cause some difficulty with general functioning - noticeably reduced social contact and recreational activities and minor effects on her ability to work; this impairment, alone, would not prevent full-time work. To my mind Ms Netherwood’s psychiatric impairments and symptoms as reported by Ms Excell and Ms Watson are more than mild but do not rise to the level of serious symptomatology or impairment consistent with the examples set out at the 20 point level. I am reasonably satisfied that her psychiatric impairment under Table 6 warrants a rating of 10 points.

47.     Considering Ms Netherwood’s evidence and that of Ms Excell, Ms Downey and Ms Watson concerning pain, it appears that under Table 20 her functional impairment relating to pain is characterised by moderate symptoms which are distressing but prevent few everyday activities; her self-care is unaffected and she retains her independence; she can drive and undertake activities, but she is compelled to rest every few hours, or to rest for a few hours each day. To my mind Ms Netherwood’s pain symptoms and impairment in January 2010 prevented completion of activities more than ‘rarely’, this being a daily occurrence on the evidence of Dr Coleman. Furthermore the degree of this impairment’s interference with work-related tasks is more than ‘minimal’. It is possible that the symptoms are more severe and lead to avoidance of some daily tasks and simple tasks aggravate symptoms of fatigue. But, considering the evidence, to my mind that characterisation may more closely reflect the present state of affairs, rather than the state of affairs that existed in January 2010. I note Dr Coleman’s evidence that Ms Netherwood’s generalised myalgia was getting worse in May 2010. Thus, I am reasonably satisfied that Ms Netherwood’s pain impairment warrants a rating of 15 points under Table 20.

48.     It follows that the overall impairment rating is 25 points under Tables 6 and 20. The requirements of section 94(1)(b) are satisfied.

continuing inability to work

49.     For the purposes of section 94(1)(c) of the Act, a person will be taken to have a continuing inability to work if the tests set out in section 94(2)(a) and (b) are satisfied:

(a)  the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)  either:

(i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)  if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Section 94(5) provides guidance in respect to ‘training activity’ and ‘work’:

(5)  In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)  education;
   (b)  pre‑vocational training;
   (c)  vocational training;
   (d)  vocational rehabilitation;
   (e)  work‑related training (including on‑the‑job training).

work means work:

(a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
   (b)  that exists in Australia, even if not within the person’s locally accessible labour market.

50.     On 15 December 2009 Ms Torney reported that Ms Netherwood had a “Temporary capacity for work” of 15-22 hours per week and by 12 February 2010 this was expected to revert to 30 or more hours per week without intervention[43]. The basis on which this assessment was made is far from clear. Ms Torney was not called to give evidence so this aspect of her report could not be tested. On 3 March 2010 Ms Excell reported that Ms Netherwood’s capacity for work was 8 to 14 hours per week and that this would continue for at least 2 years without intervention but, with intervention this may increase to 23 to 29 hours per week. The interventions Ms Excell considered necessary were medical treatment – continued medical monitoring and treatment; vocational assessment/counselling; and job seeking/post placement support[44]. It appears that Ms Excell was of the opinion that Ms Netherwood’s restricted work capacity was “due to medical conditions [generalised myalgia and Anxiety] likely to last more than 2 years”. Ms Excell’s assessment is largely consistent with that of Ms Watson on 7 June 2010. Ms Watson reported that “it is unlikely that [Ms Netherwood] will be able to increase work capacity beyond 14 hours per week in the absence of intervention”, “it is anticipated that within 2 years of receiving intervention, the client will be able to increase work capacity to perform 15-22 hours per week”[45]. Ms Watson considered the following interventions to be required: further diagnostic/medical investigation; psychological/cognitive assessment/intervention; counselling; job-seeking; job search skills; post-secondary/adult course – vocational; and work experience. I accept this evidence and so find. I prefer and give greater weight to the assessments of Ms Excell and Ms Watson than to the assessment of Ms Torney as their reports are internally consistent and consistent with the balance of the evidence concerning Ms Netherwood’s disabilities at the relevant time, including her own account, whereas Ms Torney’s report is not.

[43] T6 folio 18.

[44] T9 folios 31-32.

[45] T16 folios 51 and 52.

51.     As can be seen the first test is whether the impairment, of itself, is sufficient to prevent Ms Netherwood from doing work[46] of at least 15 hours per week, subject to her existing work skills and experience[47], independently of a program of support[48]. Section 94(4) provides guidance on this latter point:

[46] Secretary, Department of Families, Housing Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [92].

[47] Secretary, Department of Families, Housing Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [29].

[48] Secretary, Department of Families, Housing Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [16].

(4)  A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
      (a)  is unlikely to need a program of support that:

(i)  is designed to assist the person to prepare for, find or maintain work; and

(ii)  is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)  is likely to need such a program of support provided occasionally; or

(c)  is likely to need such a program of support that is not ongoing.

52.     To my mind the interventions that Ms Excell and Ms Watson thought were necessary are not consistent with a program of support that is ‘occasional’ or that is ‘not ongoing’; on their evidence it appears likely that Ms Netherwood required a program of support of an ongoing kind, at least in part, in order to assist her to prepare for, find and maintain work. No issue was raised concerning Commonwealth funding of such a program. Thus, to my mind, Ms Netherwood’s impairments prevent her from working for at least 15 hours per week independently of a program of support. That being so, section 94(2)(a) is satisfied.

53.     I note that Ms Netherwood has very limited work skills and experience[49], having education to Year 8 only, with some experience of working in retail employment and having completed massage and beauty therapy courses.

[49] See, for example, T9 folio 31, T15 and T16 folios 51-52.

54.     With regard to section 94(2)(b), there is no evidence that Ms Netherwood’s impairments prevent her from undertaking a course of training, as defined, within the next 2 years. Ms Netherwood indicated her desire to undertake such training with appropriate interventions and support. That approach is to be encouraged.

55.     The final question is whether such training activity is unlikely (because of the impairment) to enable Ms Netherwood to work at least 15 hours per week independently of a program of support within 2 years. Considering the evidence of Ms Excell and Ms Watson and the nature of Ms Netherwood’s impairments as a result of her ‘permanent’ conditions, to my mind it is unlikely that training activities as described, being vocational in character, alone, would enable her to work at least 15 hours per week independently of a program of support within 2 years. As I have said, on the evidence of Ms Excell and Ms Watson, it is likely that Ms Netherwood would require a program of support to prepare for, find and maintain work; her capability to maintain work for at least 15 hours per week is likely to involve ongoing medical monitoring and treatment, psychological assessment and counselling. These are not matters that are likely to be addressed by vocational training activities.

56.     It follows that I am reasonably satisfied that Ms Netherwood satisfies the requirements of section 94(2)(b) of the Act.

conclusion

57.     In conclusion, therefore, I am reasonably satisfied that Ms Netherwood satisfies the requirements of section 94 of the Act and qualified for a DSP on 20 January 2010 or within 13 weeks thereafter. It follows that the decision under review will be set aside.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         .............[sgd].................................................................
           H. Choi (Associate)

Date of Hearing  7 April 2011
Date of Decision  18 May 2011
Representative for the Applicant               Self Represented

Solicitor for the Respondent  Ms J MacLean, Centrelink Advocacy Branch