Rolon; Secretary, Department of Employment and Workplace Relations and

[2006] AATA 1513

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 1513

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/400

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And ALICIA ROLON

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly  and
Member, Dr Max Thorpe

Date of oral decision        20 December 2006

Date of written reasons    17 January 2007

PlaceSydney

Decision The decision under review is set aside and substituted for that decision is the decision that her major depressive condition was not permanent and therefore nil points can be attributed to it.  Accordingly she does not satisfy the 20 point criterion and is not entitled to disability support pension. 

[sgd] Presiding Member
  Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1.At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – issue whether condition could be said to be permanent in 13-week period – held condition was not permanent – nil impairment points for depression – claim for disability support pension denied.

LEGISLATION

s 94, introduction to the Schedule 1(b) Social Security Act 1991

Senior Member, Mrs Josephine Kelly

1.      The Secretary of the Department of Employment and Workplace Relations (“the Secretary”) seeks the review of the Social Security Appeals Tribunal’s decision to grant Mrs Rolon a Disability Support Pension (“DSP”).  There is no dispute in these proceedings that Mrs Rolon suffers from major depression.  The issues are:  (1) whether it is a relevantly a permanent impairment; and (2) if so, what is the appropriate rating to be given.

2. It is also not in dispute that if the condition is permanent and she receives a rating of 10 points or more, she will qualify for the DSP as otherwise she satisfies the criteria in section 94 of the Social Security Act 1991. It was accepted that she has a 10-point rating for another condition. Perhaps before I continue, to save unnecessary anxiety, I should say that Mrs Rolon has not been successful in these proceedings.

3.      Mrs Rolon gave evidence.  She has a problem remembering things. She did her best to describe her symptoms over the last few years.  She said that she is not as teary as she was in the past.  She said that taking St John’s Wort has helped her during the last six months approximately.  In short, her family is her life and she has few interests outside that.  She goes to bowls one day a week and spends many hours sewing. 

4.      I had the benefit of evidence from two consultant psychiatrists, Dr Menendez who has treated Mrs Rolon, and Dr Prior who saw her for medico-legal purposes.  Both doctors provided a report and gave oral evidence.

5.      Dr Menendez first saw Mrs Rolon on 27 January 2004 upon a referral from his wife, Dr Mohr-Bell who is and was Mrs Rolon’s general practitioner.  Mrs Rolon had been taking Lovan 20 milligrams daily for two weeks before she saw Dr Menendez and he advised her to continue with it.  The evidence from both Mrs Rolon and Dr Menendez establishes that she ceased taking it because of side effects.  The evidence does not disclose for how long she took that medication but she was not taking it when she saw him again on 6 August 2004.  He also saw her on 30 August, 3 September, 17 September, 1 October 2004, 15 October and 3 December of the same year.  During his oral evidence, Dr Menendez said that he prescribed another antidepressant, Effexor, in September of that year but by October she was not taking it because of side effects.  Dr Menendez stated in his report that during the second half of 2004 he made repeated attempts to discuss her family issues and “changes to the antidepressant medication”…”At the last appointment, that is, 3 December 2004, she advised me that there was nothing that she could do to improve her family situation and that she preferred no (sic) to attend any further appointments.  She was not taking any antidepressant medications.”

6.      Dr Menendez did not see Mrs Rolon again until 11 August 2006, that is, about 20 months later.  It is important to understand the context in which she returned to see him.  Mrs Rolon was referred to Dr Prior, a consultant psychiatrist on behalf of the Secretary, and she saw that doctor on 10 July 2006.  The doctor’s report is of the same date and was filed in this Tribunal and, I infer, served on Mrs Rolon’s solicitor on 1 August 2006.

7.      In Dr Menendez’s report, dated 15 September 2006, he referred to the letter from the solicitor acting for Mrs Rolon, dated 10 August 2006, requesting a medical report in relation to Mrs Rolon.  He also referred to the referral letter from Dr Mohr-Bell dated 7 August 2006 which indicated that Mrs Rolon was involved in legal issues and that she presented with “depression, low concentration span, unhappiness, social isolation and hyperphagia.” 

8.      In his report, Dr Menendez stated that he prescribed Lexapro 20 milligrams daily on 11 August 2006, that is the first time in 20 months that he had seen her, and that “She is not taking any antidepressant medication at present,” that is, as of the date of his report of 15 September 2006.  I infer that Mrs Rolon had stopped taking medication on the second occasion he saw her in 2006, that is, 11 September just before he wrote his report.  During his oral evidence, Dr Menendez said that she ceased taking that medication also because of side effects. 

9.      The doctor also saw her on 24 November 2006 and will see her again in March 2007.  He also said that given what has happened during the last three years, he would not prescribe any other forms of medication as she could not tolerate the three antidepressants as set out above.  Two of them were of the same class, and the other from a different class of antidepressant.  He said that there were two other classes of antidepressants and provided reasons why he would not prescribe them to Mrs Rolon.

10.     He considered that her condition was constant over the time he had been seeing her.  In response to a question put to him about her regular attendances on her GP, when she received counselling, he said that he thought it was helpful because it allows her to have regular contact with her GP who can follow any worsening of the condition and liaise with him if “something different is to be done.”  He did not say that it was a treatment for the condition.  The dosages of two of the medications prescribed for Mrs Rolon were starting doses.  The only therapeutic dosage he said he prescribed was the Lexapro which was prescribed in August 2006.

11.     Dr Menendez said that he could not say with certainty whether Mrs Rolon’s condition was permanent because it went hand in hand with her family situation.  He said that when he saw her on 24 November 2006 that situation had taken a turn for the worse and she was very upset.  While one family problem had resolved a new one had developed.  It is unnecessary for the purpose of this decision to go into details of those matters.  Dr Menendez was not surprised that Mrs Rolon was taking St John’s Wort but he said that there is no evidence in the literature that it works. 

12.     Dr Prior had not seen Dr Menendez’s report when he gave oral evidence and the Tribunal had not heard Dr Menendez’s oral evidence at that time.  The Tribunal put various matters from Dr Menendez’s report to Dr Prior for his comment, including the two medications mentioned in it.  In summary, Dr Prior’s opinion was that it was not possible to say that Mrs Rolon’s major depression was permanent unless she had had an aggressive trial of medication which he did not consider had occurred.  He noted that the dosages of Lovan and Lexapro as set out in Dr Menendez’s report were introductory.  He was not aware of the use of Effexor in 2004.  He considered that as she had responded positively to St John’s Wort that it was a positive indicator that she might respond to more conventional medications.

13.     He also agreed in cross-examination that he would try a different medication if a client had adverse side effects for more than three weeks.  Dr Prior also fairly acknowledged that it is difficult to get a patient to have treatment who does not want to have it. 

14.     It is clear that Mrs Rolon was referred to Dr Menendez again in 2006 in response to Dr Prior’s report and for the purposes of a report being obtained for these proceedings, rather than for her condition in the normal medical context and I repeat that Mrs Rolon had not seen Dr Menendez for a period of 20 months.

Consideration

15.       I take into account the introduction to the Schedule 1B of the Social Security Act 1991, particularly paragraphs 4, 5 and 6. However, I do not read them out for the purposes of these proceedings but refer in particular to paragraphs 5 and 6. Mrs Rolon’s claim for DSP was made on 15 June 2005. The question is, did she qualify for the DSP on that date or within 13 weeks of that date. I can take into account evidence up until the hearing but have to make a decision in relation to that 13-week period.

16.     Dr Mohr-Bell’s report lodged with the DSP claim reported that the impact of the condition on Mrs Rolon’s ability to function was expected to persist for 24 months and that the effect on her ability to function was uncertain.  The doctor reports current treatment, counselling and exercise and past psychiatric treatment. 

17.     I accept Dr Menendez’s opinion that Mrs Rolon’s condition is determined by her family’s situation. On the evidence, one aspect of that which initially caused her great concern has resolved, but another difficulty has arisen.  During the 13-week period, I do not consider that Mrs Rolon’s condition could be said to have been permanent.  It depended on her family’s situation.  There had been past psychiatric treatment but it was short lived because of the side effects of medication and because of Mrs Rolon’s opinion that she could not change her family situation.  I find that the psychiatric referral in 2006 was a response to Dr Prior’s report rather than a response to Mrs Rolon’s condition.  The medication was prescribed at that time and was not continued with because of side effects.  It does not persuade me that there has been reasonable treatment.

18.     Although Dr Prior was aware of only two of the medications she had tried, I accept his opinion that there are numerous other options.  I found Dr Menendez somewhat defensive in relation to the medication regime he had tried and his reasons for not trying other medications and prefer the opinion of Dr Prior on this point.  I also accept Dr Prior’s opinion that major depressive episodes generally should remit with appropriate aggressive treatment and/or time.  A minority, 10 per cent of said such episodes, do not remit. 

19.     I find that Mrs Rolon has improved over time.  In particular, she is not as teary as she was previously.  Whether that is a consequence of time, family circumstance or St John’s Wort, I do not know.  I also find that she has not had reasonable treatment, including medication.  Although her counsel and Dr Prior do refer to counselling, Dr Menendez did not consider Mrs Rolon seeing her GP regularly as treatment, but rather monitoring.

20.     In my opinion on the evidence, I conclude that Mrs Rolon’s major depressive episode was not permanent during the relevant 13-week period.  It was not possible to say her condition was fully stabilised because it was not possible to say that it was unlikely that there would be any significant functional improvement with or without reasonable treatment within the next two years.  One could not forecast her family situation and it was not possible to say that other treatment would not assist her. 

21.     For those reasons, I set aside the reviewable decision and determine that Mrs Rolon’s major depressive condition was not permanent.  Accordingly, as she has a rating of 10 points only, her application cannot succeed.  I note, of course, that Mrs Rolon may apply in the future for the DSP.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms Preethi Nimmagadda
   Associate

Date of Hearing  19 December 2006 
Date of Oral Decision  20 December 2006
Date of Written Reasons  17 January 2007
Representative for Applicant   Centrelink Legal Services Branch
Counsel for the Respondent   Elizabeth Wood
Representative for the Respondent          Legal Aid Commission