RFTG; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1174
•27 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1174
ADMINISTRATIVE APPEALS TRIBUNAL )
)Q200600230
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
RFTG
Respondent
DECISION
Tribunal Dr E Christie, Member
Dr JB Morley, MemberDate27 March 2007
PlaceBrisbane
Decision The decision under review is affirmed. The respondent has a continuing entitlement to disability support pension from 26 October 2005.
.........[Sgd]..........
EK Christie
Presiding Member
CATCHWORDS
SOCIAL SECURITY – disability support pension –– recurrent major depressive disorder – assessment of impairment – inability to work – expert evidence: evaluation of competing medical opinions – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) s 94
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996)
Davie v Edinburgh Magistrates (1953) SC 34
Polivitte Ltd v Commercial Union Assurance Company Pty Ltd [1987] 1 Lloyds Rep 379
Randwick City Council v Minister for the Environment (1998) 54 ALD 682
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238WRITTEN REASONS FOR DECISION
27 March 2007 Dr EK Christie, Member
Dr B Morley, Member
Introduction
1. This is an application by the Secretary, Department of Employment and Workplace Relations for a review of a decision of the Social Security Appeals Tribunal made on 8 March 2006 which decided that the respondent remained at all times qualified for disability support pension (“DSP”).
2. In reaching its decision, the Social Security Appeals Tribunal concluded that:
“The Tribunal is satisfied that [the respondent’s] depression has been fully treated and stabilised and can be rated under Table 6 of the Impairment Tables as a permanent condition…In this case, the Tribunal has found that [the respondent] requires regular treatment by a psychiatrist as a result of frequent suicidal ideation, severe anxiety and occasional severe anti-social outbursts. This means that the condition is more appropriately rated with 20 points than with 10 points and [the respondent] qualifies under section 94(1)(b)….
In this case, the Tribunal has found that [the respondent], as a result of his psychiatric disorder, is unable to undertake any sustained activity for more than approximately 15 hours in a week. The Tribunal has also accepted evidence that his mental functioning is not currently consistent with study or re-training. The Tribunal is satisfied that this situation is unlikely to materially change within the next two years. This means that he has a continuing inability to work as defined in section 94(2) and qualifies for disability support pension under section 94(1)(c)(i).” [T2, Folio 7].
3. The respondent first became entitled to DSP in December 2001 (T8, folio 30). His continuing entitlement to disability support pension was cancelled on 26 October 2005.
4. At the hearing, the applicant was represented by Ms M Brennan of Counsel. The respondent’s father represented the respondent.
5. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” Documents (Exhibit 1) and the various exhibits lodged by the parties.
6. At the end of the hearing the Tribunal adjourned the hearing in order to exert its inquisitorial powers in relation to:-
·Dr V’s evidence that the respondent may have adult residual features of ADHD or ADD.
·The respondent’s evidence relating to impaired concentration and
·The potential application of Table 8 [Neurological Function, Memory, Problem Solving, Decision Making Abilities and Comprehension].
7. The Tribunal took this course, given that the respondent was not represented, to ensure procedural fairness in the evaluation of expert evidence and to ensure the correct and best informed decision could be made.
8. In his oral evidence at the resumed hearing, Dr U [the respondent’s treating psychiatrist] stated that ADHD was “something which has exercised our mind over the time”. However, he said that on consideration of the treatment and medication regime he had provided to the respondent over time, including his response, the respondent’s concentration problem “falls far less than attention deficit disorder”. Moreover, he did not think it true that the condition of ADHD had been diagnosed, treated and stabilised in the case of the respondent. The Tribunal accepts Dr U’s evidence, in this regard, and so has concluded that the respondent does not have any features of adult residual ADHD. Consequently, it would not be appropriate to apply Table 8 in the assessment of impairment.
Issues Before The Tribunal
9. There were a number of issues for the Tribunal to decide:
(a)whether the respondent had an impairment rating of 20 points or more; and
(b)whether the respondent had a continuing inability to work.
Statutory Requirements and Relevant Case Law
10. The relevant legislation is the Social Security Act 1991 (“the Act”).
11. Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.
“Qualification for disability support pension
94.(1) [Qualification – continuing inability to work] 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;
…
Meaning of continuing inability to work
94.(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person 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.
94.(3)[Secretary not to have regard to certain matters] In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.”
94(5) [Interpretation] in this Section:
…
‘work’ means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”
12. Schedule 1B of the Act, at Table 6, [Psychiatric Impairment] prescribes criteria used to assess work‑related impairment for disability support pension. For this application, the criteria for an impairment rating of 10, 20 and 30 are relevant
“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’s Decision-Making Powers
13. There is only one decision possible – whether the respondent is entitled to continue receiving the DSP from 26 October 2005, the date it was cancelled. Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
14. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time.
[See Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326]
15. Given that this application involves a continuing entitlement to DSP, the only period the Tribunal can consider evidence is based on the facts at a particular point in time - the date of cancellation of the respondent’s DSP on 26 October 2005:
[See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671]
§Divergent Medical Opinion
16. This application for review involves divergent medical opinion as to the extent of the impairment rating. The task of the expert witness in this situation has long been recognised by our Courts. In Davie v Edinburgh Magistrates (1953) SC 34 at 40, the following principle was recognised:
“The function of an expert witness is to furnish the [Tribunal] with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the [Tribunal] to form their own independent judgement, by the application of these criteria to the facts proved in evidence.”
17. In addition, independent assistance should be provided to a court by way of objective, unbiased opinion regarding matters within the expertise of the expert: Polivitte Ltd v Commercial Union Assurance Company Pty Ltd [1987] 1 Lloyds Rep 379 at 386 per Garland J, a principle followed in Randwick City Council v Minister for the Environment (1998) 54 ALD 682.
18. The reasoning of Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Court of Appeals NSW) is significant with respect to the evaluation of medical evidence by our Courts. At 242, Herron CJ stated:
"But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try” (Tribunal emphasis).
Examination Of The Evidence
ISSUE 1: ASSESSMENT OF IMPAIRMENT
19. The respondent’s father gave evidence in the hearing. He confirmed that the break-up of the respondent's marriage marked the start of his son’s psychiatric problems. At the time the respondent was working as a security guard; the family lived in Mackay. His son had walked about 25 km to their house, declaring he was going to strangle his ex-wife; by the time that he arrived, she had been warned and left the premises. Thereafter his son’s behaviour became volatile; he could not work; he would "lose the plot", acting "as if in a trance". During his outbursts he was physically uncontrollable, often inflicting property damage, but never assaulting individuals. After two months of attempted treatment in the Mackay Public Health System, without improvement, on the recommendation of a friend they moved to Brisbane and had him referred to B Hospital.
20. The medical evidence available to the Tribunal consisted of:
- Treating Doctor's Report from General Practitioner Dr C of 14 November 2001 (exhibit 1 folios 22-25).
- Treating Doctor's Reports from the respondent’s treating Psychiatrist, Dr U, on 3 August 2005 (exhibit 1 folios 43-50) and 27 November 2005 (exhibit 1, folios 69-73), as well as a report of 9 October 2006 (exhibit 3) Dr U also gave oral evidence at the hearing.
- Work Capacity/Participation Assessment Report prepared by Advanced Personnel Management on 16 August 2005 (exhibit 1, folios 51-62).The author of this Report was not a witness at the Tribunal hearing. Instead, the Team Leader of Advanced Personnel Management gave oral evidence on this Report.
- Report of consultant Psychiatrist Dr V (for the applicant) of 3 July 2006 (exhibit 2); Dr V also gave evidence by telephone in the hearing.
- Report from Dr D of Queensland X-Ray of the respondent's MRI brain scan of 4 April 2001 (exhibit 4).
- Reports from Consultant Neurologist Dr C to Dr U of 11 and 17 April 2001 (exhibits 5a and 5b).
- Dr U’s Health Summary of the respondent, from The C Clinic of Carina as at 8 January 2007, commencing in March 2001 (exhibit 6).
21. The Tribunal also had available from the applicant the summonsed respondent's case notes from B Hospital, recording the respondent’s admissions to that Hospital of 28 February to 12 March 2001, 22 March to 14 April 2001, 25 to 29 April 2002, 12 to 15 May 2003, 1 to 15 December 2003, and 29 to 31 December 2003.
22. In his treating doctor's report of 14 November 2001 Dr C diagnosed the respondent with "major depression", with clinical features of "low mood" and “concentration problems”. He had been treated with Efexor, "counselling and support". He opined that the respondent would be likely to be absent or several hours late for work four or more days per month, was unable to work full days because of endurance problems, his behaviour would disrupt others at work for at least 15 minutes a day, he would have difficulty alternating between a variety of tasks, and that he would move with reduced speed, coordination and/or difficulty.
23. Nearly four years later (3 August 2005), Dr U, treating Psychiatrist, diagnosed him with "major depressive disorder (and) intermittent explosive disorder". He referred to his lengthy episodic history of "depressive disorder associated with violence", for which he had required four admissions into B Hospital. His current symptoms included "depressed mood to dysthymic degree on and off", with irritability, and impairment of his concentration, motivation, and energy. He now was taking Lexapro. These impaired his ability to function by "reduced tolerance of anxiety and stress". He added that the respondent’s ability to cope was slowly improving.
24. In his second treating doctor's report of 27 November 2005 (exhibit 1, folio 69-73) Dr U diagnosed a recurrent major depressive disorder, with history of sleep and concentration impairments, requiring B Hospital admissions, with "partially successful" treatment. He continued on Efexor medication; and his reduced concentration, motivation and energy made it difficult for him to increase his work capacities.
25. In the Work Capacity/Participation Assessment Report prepared by Advanced Personnel Management dated 16 August 2005 (T12, folio 51) the Report notes the respondent’s "poor motivation/concentration/attention, anxiety and poor stress tolerance... poor tolerance to questions... (and) towards others... reported to have outbursts...", as well as his limited employment history, skills, job seeking abilities, and his "criminal record for violent/firearm offence". To assist his job seeking (folio 56) it was recommended that he seek "specific work that is more solitary in nature", and that he would need "ongoing post placement support", this assistance to be undertaken immediately (folio 57). Regarding his capacity for work training (folios 58 and 59) the report states that he was unlikely to obtain full-time work without assistance within two years. However with training, within six months he could work as a factory hand or farm hand for up to 29 hours per week; and with 'disability specific intervention' he could work as a farm hand or assembly worker for up to 29 hours per week within six months, and for more than 30 hours per week after that. The Report continues: "Disability specific assistance will assist increase capacity for work through providing advocacy and post placement support".
26. This Report gives an impairment rating of 10 (folio 60) under Table 6 because of his "Moderate regular symptoms. Functioning with some difficulty. Minor effect on work attendance". The Report provides the following reasons for this rating (folio 61):
"Depression - rated as permanent as per treating doctor's report. Customer reported 'as far as my depression goes I am going okay... I do not feel depressed'. He reported to be capable of grocery shopping and driving without difficulty. He reported no anxiety associated with attending Work Capacity Assessment and Centrelink. Customer advised he had poor attention and poor anger management skills, with tendency to have explosive outbursts. Customer reported to be managing this 'better' but still feels 'frustrated' often. Customer stated that he was unable to sit and read for any period of time and had difficulty focusing on tasks. Customer reported to be reviewed by his psychiatrist every 6-12 months. Customer advised he takes Luvox daily for medication. Customer was able to speak with usual facial expressions, intonation and social skills. He reported anxiety associated with attending large crowds only. He stated he was looking for part-time work, however, was unsure if he could maintain this, due to anxiety".
27. The Report concludes by stating that the author’s opinion of the respondent’s 'ability to function' did not differ from his treating doctor's.
28. The Tribunal notes that Dr U had not provided an impairment rating to the applicant at the time this Report was prepared.
§Oral Evidence, Advanced Personnel Management Team Leader
29. In her evidence to the Tribunal on the Work Capacity/Participation Assessment Report, the Advanced Personnel Management Team Leader, stated that the author of the Report was an experienced Occupational Therapist. Dr U's treating doctor's report was available in preparing this report. However the author of the Report had relied on her own assessment of the respondent's work capacity, rather than the treating doctor's. She could not estimate the time that would be involved in the respondent’s retraining.
- Oral Evidence of Dr V, Consultant Psychiatrist
30. Dr V's report (exhibit 2) resulted from his consultation with the respondent on 30 June 2006. He noted that, at that time, the applicant was in B Hospital. Among his conclusions (page 9) were:
- He showed "a number of vulnerabilities";
- His "impulsivity, distractibility and poor self-organisation...significantly impacted on his school and workplace functioning";
- He suffered "considerable emotional decompensation" after his relationship broke down;
- Although Dr V was not convinced that he suffered a Major Depressive Disorder, he said that he possibly had this, in remission, due to his antidepressant medication. This "treated depressive state" made him vulnerable to "depressive and anxious reactions to relatively minor stressors”;
- His current emotional state was "reasonably stable";
- Although assessed as having DSM IV Borderline/Cluster B traits NOS (not otherwise specified), "it is worth considering whether he might have adult residual features of childhood ADHD considering his developmental, school and subsequent work history".
31. In his evidence-in-chief to the Tribunal, Dr V referred to page 7 of his report, where he reviewed the respondent's B Hospital clinical notes of his various admissions up to December 2003. For the most part, these showed brief admissions, with clinical features suggesting reactive mood changes rather than major depressive disorder. He disagreed with Dr U’s diagnosis of major depressive disorder. However, he conceded that he did not interview other family members for collateral history.
32. From the respondent’s self-report, he agreed with Dr U’s diagnosis of "intermittent explosive disorder", with these outbursts apparently recurring for much of his life (since aged 16 years vide page 10 of his report) approximately every few weeks, lasting for a few hours. He said that Dr U's assessment of the respondent was more serious than his, but acknowledging that the treating doctor is "in some ways better placed" to make a detailed assessment of the patient.
§Oral Evidence of Dr U, Treating Psychiatrist of the Respondent
33. In his report of 9 October 2006 (exhibit 3), Dr U recorded that he had first seen the respondent on 28 February 2001, after "three serious suicidal attempts", "in the context of other disturbed behaviour including violent outbursts"; he was admitted that day (for 12 days) into B Hospital, and readmitted on 22 March (for another three weeks). This resulted from "decompensation…and a profound and severe depressive illness". Until that time he had "had no trouble holding down jobs albeit jobs of a menial nature". He went on:
“Since leaving hospital he has been coping with a chronic dysthymic condition punctuated by episodes of Major Depressive Disorder. He is seriously impaired psychiatrically in that he has suicidal ideation that waxes and wanes but has been constantly present for some time... (with) runs of anxiety, amounting to panic disorder which is barely under control... He has tried many times to work but his efforts barely last beyond a day or so before overwhelming anxiety or suicidal ideation comes over him and he is forced to stop... He is inconstant and episodic in his application to work. He more than qualifies for a Rating of 30 as outlined in the Table for Assessment of Work-Related Impairment for Disability Support Pension (Department of Social Security 1997).”
34. He diagnosed the respondent with "Dysthymic Disorder with Superimposed Major Depressive Disorder - the latter of a fluctuant nature...", commonly known as "double Depression". He stated that this was "notoriously difficult" to treat because of its chronicity, although the "eventual outcome" over the years "is hopeful".
35. Dr U stated that the respondent’s decompensation was no longer "present". However this had allowed the highlighting of "his propensity to depression”, resulting in several depressive episodes, requiring either inpatient treatment in B Hospital, or outpatient treatment in the C Clinic He had responded "reasonably well" to these treatments, but Dr U would not want the respondent to cease taking antidepressant medication. Although in several respects he had shown "marked improvement", this was not "sustainable". The reason for this was uncertain: some patients with this condition simply "do not get fully well", others "remain chronically unwell". In answer to a question from the Tribunal, Dr U stated that the respondent's prognosis is "not good"; but if his case continues to be "managed properly" he would not commit suicide. However, he has shown only partial response to medication and education in recognising the onset of his depressive episodes.
36. He also told the Tribunal that the respondent’s aggression was "a separate matter", and still "not resolved". He has wondered whether this is due to a personality disorder, or to an underlying "organic" cause. His MRI brain scan (exhibit 4) had shown "mild focal atrophy of the left inferior frontal gyrus (possibly a) significant focal cortical dysplasia". For further assessment of this Dr U had referred the respondent to Consultant Neurologist Dr C; after assessing him, including with an EEG, Dr C had concluded that the respondent’s outbursts were not epileptic (exhibits 5a and 5b). However, Dr U thought that this mild left inferior frontal lobe change might reduce the respondent's ability to restrain his outbursts.
37. In cross-examination, Dr U stated that the respondent's depression had caused the common symptoms of reduced concentration, lack of motivation, loss of energy, and sleeping problems. He added that, although the B Hospital notes do not record the respondent reporting suicidal ideation since 2003, this was still recurring. He agreed that the respondent's depression and anxiety were under control. Although the primary cause of his employment problems was his anxiety, his depression was the more important condition; and his concentration problems are a symptom of this.
38. With further regard to the date of cancellation of the respondent's Disability Support Pension (26 October 2005), the Tribunal has examined:
- The respondent's B Hospital case notes; and
- Dr U’s C Clinic Health Summary for the respondent (exhibit 6)
39. The Tribunal notes that, until this year, the respondent has not required admission into B Hospital since December 2003. For the six months before his Pension cancellation the C Clinic entries read (in part):
- “15/04/2005: Had some bad days a few weeks ago. "Not real flash". He was not suicidal but had trouble keeping his emotions under control - jumped in the car and drove off - stayed away for the day - went to the border ranges national park. His relationship is said to be good - eating well - sleeping only with medication - GFP gives him Stilnox. He is also taking Luvox 100 mg per day. He estimates that he feels somewhat down 2 days out of a week. He works intermittently but not regularly. I suggest that he double the dose of Luvox for a month and reassess the result of this.
- 20/05/2005: Doing sawmilling and working around the house. Also visiting his step children at Noosa. He is thinking of giving up smoking. He has an emergent interest in downhill mountain bike riding. His pills are going well. Advised to have as few sleeping medications as possible. He has lots of supplies of medications. His Luvox seems to be working well. He is taking one and a half at night. Two makes him nauseated and ill.
- 14/06/2005: (Luvox prescription written)
- 03/08/2005: He takes 1 and a half Luvox (100 mg) per day. Mood up and down but improved. Irritable and excited at times. Not able to work yet.
- 01/09/2005: (Stilnox prescription written)
- 17/10/2005: (Luvox prescription written)”
40. These record three reviews of the respondent by Dr U over the six months period April to October 2005, including three reviews in April, May and August 2005; and at two of these Dr U recorded the respondent as having significant recent mood disturbances. Moreover, Dr U informed the Tribunal that, even with the improvement experienced by the respondent, he was cautious about his long-term prognosis.
ISSUE 2: CAPACITY TO UNDERTAKE PAID EMPLOYMENT/TRAINING
41. When the respondent gave his evidence to the Tribunal, he said that he considered himself unemployable because of his frequent outbursts. He was frustrated by this; he would much rather work to obtain about $1000 a week, compared to being on the Disability Support Pension at $400 a week. He told the Tribunal that when he was affected by his outbursts he was completely unaware of his actions. His Luvox medication made him calmer, and more rational; he could think more clearly, and could more easily practice the coping strategies that the B Hospital staff had taught him to use at the time of his outbursts. He had an arrangement with Dr U to contact him when he felt the need; and this was approximately each 2-6 months; the latest was in June of this year.
42. The respondent’s father’s evidence was quite clear in this regard: that his son had done some labouring work from time to time – but was unable to sustain concentration even doing routine work. After a few days work, he became exhausted and could no longer continue working. He had also done some bulldozing work but had to cease work after a very short time because of concentration problems.
43. In the Work Capacity/Participation Assessment Report, dated 16 August 2005 (T12, folio 51), there is a notation confirming the Respondent’s 'poor motivation/concentration/attention.
- Oral Evidence of Dr V, Consultant Psychiatrist
44. Dr V commented on the respondent's employability as follows:
"1. That with some reservations, he has had a reasonable work history prior to his emotional decompensation;
"2. His mood symptoms present as very short-lived and very responsive to support and medication;
"3. He has not had access to workplace rehabilitation or re-training;
"4. His capacity to work with appropriate support has never been tested.
Given the above, it would seem reasonable to attempt to some re-training which would enable him to return to work for 30 hours or more per week, within two years".
45. When commenting on the respondent's capacity to undertake training, Dr V stated that he would have difficulty sustaining concentration and organisation. He would need simple tasks, and would be more comfortable with routines; it would be more realistic if he could be trained to work on his own.
§Oral Evidence of Dr U Treating Psychiatrist of the Respondent
46. Dr U, the respondent’s treating psychiatrist, has diagnosed him with “Dysthymic Disorder with Superimposed Major Depressive Disorder – the latter of a fluctuant nature...", commonly known as "double Depression" – a condition that this was "notoriously difficult" to treat because of its chronicity. In his opinion, these conditions would prevent the respondent from working "anywhere near 30 hours per week in his good weeks", and that the nature of his illness presently prevented him from undertaking vocational training, although this might be possible in the future.
47. Dr U stated that in his opinion, the respondent simply could not cope with working 30 hours per week, and had been unable to do so "for some time". The Tribunal has noted that, although the respondent’s depression symptom of suicidal ideation has improved appreciably with treatment, Dr U has stated that this still sometimes is present. Furthermore he also has ongoing problems with limited concentration, and lack of motivation and energy, which also are symptoms of his depression.
48. Moreover, Dr U told the Tribunal that the respondent's aggression, which has been a feature of his illness throughout, is a separate matter to his depression. Although the respondent, with therapy and support by Dr U and the B hospital staff, has learned to manage this better.
49. Furthermore, Dr U informed the Tribunal that, even with the improvement experienced by the respondent, he is cautious about his long-term prognosis. In the six months leading up to the respondent’s cancellation of his Disability Support Pension, he required three reviews by Dr U; and at two of these Dr U recorded the respondent as having significant recent mood disturbances.
Consideration Of The Issues And Findings Of Fact
50. The first issue for the Tribunal to consider is the weight we attach to the lay evidence. We find the respondent and the respondent’s father to be credible witnesses and witnesses of truth.
Whether the Respondent had an Impairment Rating of 20 Points or More at 26 October 2005
51. Next we consider the issue of impairment rating under Table 6 (Psychiatric Assessment). It is clearly evident to us, on the expert medical evidence, that the respondent had a very complex psychiatric condition, which is triggered by a “constellation of factors” (or “stressors”), and that this condition has persisted since becoming entitled to DSP in 2001.
52. With respect to the expert psychiatric opinion evidence, we prefer the evidence of Dr U to Dr V. Not only has Dr U had the benefit of treating the respondent since February 2001, this significant advantage of longitudinal history has been accompanied by monitoring and reviewing responses over time to medication and therapy, as well as an ongoing role through interactive management when periodic stressors emerge that adversely impacted on the respondent. Dr U also was in an advantageous position, relative to Dr V, for diagnosis with respect to having collateral family history available viz the respondent’s father. Moreover, we find Dr U to have provided independent assistance to us by way of his objective, unbiased opinion regarding psychiatric matters within his expertise: see Polivitte’s case.
53. The author of the Work Capacity Report is an allied health professional – an occupational therapist. Her consultation with the respondent was very brief. Whilst the author of this report states that her opinion of the respondent’s “ability to function” does not differ from his treating doctor’s, the reasons she gave to support her impairment rating of 10 under Table 6, do not provide a medical history that is consistent with Dr U’s history over time. Moreover, we find that these limitations in her report lead us to conclude that the report is subjective – not objective, in its substantive content in this regard. Accordingly, we attach no weight to the assessment of impairment rating in this report.
54. Based on the expert psychiatric opinion evidence of Dr U and the lay evidence of the respondent and the respondent’s father, we make the following findings at the civil standard of proof [see EMI (Australia) Ltd v Bes]:
(a)That the respondent has a family history of depression;
(b)That since being treated by Dr U he has suffered periods of depression that have continued over time, through to October 2005 and beyond;
(c)That he suffers from a chronic dysthymic syndrome – punctuated from time to time with major depressive disorder;
(d)Acceptance of the opinion of Dr U that whilst “there’s been some doubt about whether, in fact, he actually has had major depressive disorder, but be quite clear, there is no doubt that he had episodes of major depressive disorder, to a suicidal degree, and – but he does respond reasonably well. In fact, I wouldn’t feel happy about taking him off anti-depressants at this point in time”. This summary clearly describes the respondent’s medical condition;
(e)Whilst there has been a clinical improvement in his depression – it has not been sustainable;
(f)The respondent remains at risk of suicide. His suicidal ideation waxes and wanes, as the underlying depressive illness is triggered from time to time. Specifically, when the respondent gets stressed, the depression gets worse. There is a “whole constellation of related factors” all involved in his depression – anxiety, lack of concentration, lack of energy or motivation through to factors “that just surge up and he just can’t do anything”, that lead to feelings of suicide. However, if his condition is properly managed, he will not succeed in suicide.
(g)The consistent major, overall theme in the respondent’s condition, right up to 26 October 2005, is a chronic dysthymic disorder, with a major depressive disorder presenting intermittently.
(h)Both psychiatrists agree that the respondent also has an "explosive disorder". Dr U has made it clear that this is separate, or in addition to, the respondent's depression; and that it still has not resolved. Dr U is uncertain whether this is due to an underlying personality disorder, or to an "organic" cause, such as the respondent's mild left inferior frontal change (atrophy or "dysplasia") which has been shown on his MRI brain scan. Dr U expressed concern that this change might reduce the respondent's ability to restrain his outbursts.
(i)That his psychiatric condition significantly interferes with both interpersonal and workplace relations with severe disruption of work attendance or ability to work. The following opinion of Dr U (Exhibit 3) is supported by the lay evidence:
“He has very few interpersonal relationships apart from close family ties and they are more in the nature of caring for him rather than in any normal interpersonal and interactive nature. He has tried many times to work but his efforts barely last beyond a day or so before overwhelming anxiety or suicidal ideation over comes him and he is forced to stop. He works episodically for his father who is quite tolerant of his inabilities and capacities but I would state quite adamantly that no commercial owner would or should employ him. He is inconstant and episodic in his application to work”.
55. Accordingly, based on the above findings of fact we conclude that the respondent has an impairment rating of at least 20 points under Table 6.
Whether the Respondent Had a Continuing Inability to Work At 26 October 2005
56. The next issue for us to consider is the capacity to undertake paid work or retraining.
57. Given that the author of the Work Capacity Report has proceeded on the basis that her impairment rating of 10 is correct, it follows the conclusions she has based on this incorrect rating must also be flawed and so we attach little weight to the report in this regard. That is, given our finding that the respondent has an impairment rating of 20 “it would be difficult to say that the report adequately assesses the respondent’s capacity, then, to be back in the workforce in two years”, a point conceded by the applicant.
58. There is little, if any, objective opinion in Dr V’s expert report or evidence that addresses the question of the respondent’s continuing inability to work.
59. However, Dr U’s expert report and evidence is quite clear in this regard, that he would be unable to undertake paid work for at least 30 hours per week (but see opinion expressed at paragraph 54).
60. We accept Dr U’s evidence in this regard. Furthermore, it is significant that it is consistent with the lay evidence before us.
61. We are satisfied on the balance of probabilities, that the respondent did not have a continuing ability to undertake paid work for at least 30 hours per week at the time his DSP was cancelled in October 2005.
62. Dr V’s expert report (Exhibit 2) raises only a possibility that the respondent could attempt some retraining to work for 30 hours or more per week within two years. Dr U’s oral evidence in this regard, whilst supportive of such an approach, expressed doubts given the chronic depressive disorder background of the respondent. At best, his opinion could only suggest retraining to be a possibility.
63. Applying the principle in EMI (Australia) Ltd v Bes, we conclude that, based on (a) the lay evidence, (b) the expert evidence that retraining represented a possibility only and (c) the finding of facts on the nature of the psychiatric conditions, symptomatology and the constellation of stressors, we are satisfied, on the balance of probabilities, the respondent does not have a continuing ability to work in terms of undertaking training of the type specified in ss 94(2)(b) at the time his DSP was cancelled in October 2005.
Decision
64. For all of the above reasons we affirm the decision under review. The respondent was entitled to continuing DSP payments at the time his DSP was cancelled on 26 October 2005.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member and Dr J B Morley, Member.
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 7 December 2006 and 24 January 2007
Date of Decision 27 March 2007
Counsel for the Applicant Ms M Brennan
Solicitor of the Applicant Australian Government Solicitor
Respondent Respondent’s Father
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